Filed 3/20/23 P. v. Martinez CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

SERGIO MATHEW MARTINEZ,

Defendant and Appellant.

F079274

(Super. Ct. No. 16CMS2699)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Louis F. 

Bissig* and Donna L. Tarter, Judges.

Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. 

Hokans, Timothy L. O’Hair, Henry J. Valle, and Dina Petrushenko, Deputy Attorneys 

General, for Plaintiff and Respondent.

-ooOoo-

*Retired judge of the Kings Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.
2.

INTRODUCTION

Defendant Sergio Mathew Martinez, who was a minor at the time of the charged 

offenses, was tried in adult criminal court for the first degree murder of Sergio Cabral

(§ 187, count 1) with related special circumstance allegations (§ 190.2, subd. (a)(21), 

(22)) and gang and firearm enhancements (§ 186.22, subd. (b); §§ 12022.5, subd. (a), 

12022.53, subds. (b), (c), (d)). He was also charged with three counts of attempted, 

deliberate, and premeditated murder (§§ 664, 187, subd. (a); counts 2, 3, and 4) with 

related firearm (§ 12022.53, subds. (b), (c)) and gang allegations (§ 186.22, subd. (b)). 

(Further undesignated statutory references are to the Penal Code.) At the close of the 

People’s case-in-chief, the court granted a defense motion for a directed verdict on counts 

2 and 3.

The jury convicted defendant of first degree murder (count 1) and found the 

related enhancements and special circumstance allegations true. It acquitted defendant of 

count 4. Defendant moved for a new trial based on alleged juror misconduct. The court 

denied the motion. Defendant filed a motion for reconsideration of his new trial motion 

based on juror misconduct, attaching a juror affidavit. The court denied the motion and 

proceeded to sentencing.

On appeal, defendant raises multiple issues: (1) his right to a public trial was 

violated when his sister was excluded from the trial; (2) there was prejudicial juror 

misconduct; (3) the court erred in taking judicial notice of a witness’s statements from the 

preliminary hearing; (4) the court improperly denied defendant’s motion for continuance;

(5) the court prejudicially erred in admitting a rap video into evidence; (6) the jury was 

not properly instructed with regard to considering defendant’s youth in assessing the 

application of self-defense; (7) the prosecutor committed prejudicial misconduct; (8) the 

cumulative effect of the errors was prejudicial; (9) the special circumstances are 

unconstitutional; and (10) the matter should be remanded for the trial court to exercise its 

discretion regarding whether to impose a lesser firearm enhancement. In supplemental 
3.

briefing, defendant asserts the gang enhancement and gang special circumstance should 

be vacated pursuant to Assembly Bill No. 333 (2021–2022 Reg. Sess.) (Assembly Bill 

333). He further contends, at resentencing, changes to section 1385 resulting from the 

enactment of Senate Bill No. 81 (2021–2022) (Senate Bill 81) should apply. Finally, he 

argues he is entitled to a conditional reversal and remand for the juvenile court to conduct 

a new transfer hearing based on the modifications to the law enacted by the recent 

passage of Assembly Bill No. 2361 (2021–2022 Reg. Sess.) (Assembly Bill 2361). The 

People disagree with all of defendant’s contentions, except they agree a conditional 

reversal and remand is required based on the passage of Assembly Bill 2361.

We reverse the gang enhancement and gang-murder special circumstance, 

conditionally reverse the remainder of the judgment, and remand to the juvenile court for 

a new transfer hearing and for further proceedings consistent with this opinion.

FACTUAL AND PROCEDURALBACKGROUND

Defendant was charged with the murder of Sergio Cabral, multiple counts of 

attempted murder, and multiple enhancements and special circumstances after he 

admitted to committing a shooting that resulted in Cabral’s death.

Procedural history

Though defendant was a minor, the prosecutor initially filed defendant’s case 

directly in adult criminal court. After Proposition 57 passed, the matter was transferred 

back to juvenile court and a transfer hearing was held. At the transfer hearing, the court 

found “the overall circumstances support a transfer of this case to adult court.”

Accordingly, defendant was transferred from juvenile court to adult criminal court 

where he was charged with the first degree murder of Cabral (§ 187; count 1)

1

together 

with related special circumstance allegations (§ 190.2, subd. (a)(21), (22)) and gang and 

firearm enhancements (§§ 186.22, subd. (b), 12022.5, subd. (a), 12022.53, subds. (b), (c), 

1There were separate allegations that that the murder was premeditated and that the 

murder was committed by means of discharging a firearm from a motor vehicle. (§ 189.)
4.

(d)). He was also charged with three counts of attempted, deliberate, and premeditated 

murder (§ 664, 187, subd. (a); counts 2 (related to Manuel Cabral), 3 (related to Miguel 

Rosales), and 4 (related to Ramon Perez) with related firearm (§ 12022.53, subds. (b),

(c)) and gang allegations (§ 186.22, subd. (b)).

Prosecution evidence

Shooting and death of Sergio Cabral

On August 20, 2016, Sergio Cabral was shot at an intersection in Avenal; he died 

as a result of the gunshot wounds. Ramon Perez was with Cabral when Cabral was shot.

At the time, Perez and Cabral were walking in the intersection of Corcoran and Lassen; 

Miguel Rosales and Cabral’s brother Manuel Cabral (Manuel) were walking with them 

and were about “two car lengths” away.

According to Perez, it was a normal day, “[n]othing out of the ordinary.” They 

were walking “from the store”; at some point, they thought they saw someone they knew 

in a gray car, but they were mistaken. As they approached the intersection, a car pulled 

up at the same time. Perez and Cabral did not pay attention to the car, though Perez

testified he thought it was the car they had seen earlier.

Perez and Cabral crossed the intersection and stepped up on the curb as the car 

stopped at a stop sign at the four-way stop. Perez and Cabral “were kind of towards the 

back end of the car” and “there was no interaction between nobody.” Perez could not see 

in the car at all.

“[S]hooting started coming from the car.” Perez and Cabral “took off.” Cabral

“staggered a little behind,” then Perez saw Cabral fall. Perez did not see Cabral get hit; 

but he “just knew.” Perez “took off ... across the street ...running.” He “wanted to go 

get help and then come back.”

Perez testified the shooter was shooting at him and Cabral, not the whole group as 

they were never in the same spot at one time. Rather, the other two “were so far ahead,”
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a “good distance” away; it was “mostly just [Perez] and [Cabral].” Perez felt the first 

shot was meant for him because he “was right there.”

Perez never heard Cabral say anything to anyone in the car and he did not see 

Cabral make a gesture toward anybody in the car. He also did not see Cabral with any 

type of weapon or reaching for one. Perez denied doing anything to threaten anyone in 

the car.

G.M. testified Cabral was her boyfriend at the time he was shot. That day, G.M.

was in her house talking to Cabral on the phone when G.M. heard gunshots in her 

window.2 The phone was silent. A few seconds later, G.M. “heard someone scream that 

they shot him.” G.M. said, “hello”; Cabral did not respond. G.M. ran outside. She saw 

Cabral face down on the ground. She approached him and tried to talk to him; he did not 

respond. G.M. turned Cabral’s body over and his eyes were closed; one was really 

swollen, and he had some blood on his nose. G.M. put pressure on the side of Cabral’s 

head where he was bleeding. She did not see a gun on or near his body.

G.M. testified Cabral did not seem angry when she was speaking to him on the 

phone. They were having a normal conversation; G.M. asked Cabral where he was going 

because they were supposed to meet up. She testified Cabral had an “A” tattoo on the 

back of his left hand, a “V” on one shin, and an “L” on the other shin. He also had an 

“A” tattooed on the back of his ear. The prosecution’s gang expert, Officer Leopoldo 

Segura, testified the letters “AVL” stand for “Avenal Varrio Lomas,” which is a Norteño

criminal subset in Avenal. He explained Cabral was identified by law enforcement as a 

criminal street gang member.

A.R. heard the shooting; she had just walked into her mother’s house on Corcoran. 

A.R. heard approximately three gunshots, a pause for a few seconds, and then 

approximately two more gunshots. A.R. looked outside the window and saw a gray car 

2Notably, Perez testified Cabral did not take or make any phone calls at the intersection.
6.

driving off “really fast.” The prosecutor presented A.R. with a photograph of a car that 

A.R. testified was the exact style and color of the car she saw driving away.

S.B. also heard “quite a few” gunshots and then went outside. When S.B. got 

outside, she saw a man lying on his back and people screaming. The man was choking 

on his blood and struggling to breathe. S.B. rolled him onto his side to try to prevent him 

from choking on his blood; she did not know the man.

The pathologist who conducted an autopsy of Cabral’s body observed five bullet 

holes, including an entrance wound through Cabral’s ear and an exit wound through his 

forehead, an entrance wound a little below Cabral’s armpit and the related exit wound, 

and an entrance gunshot wound on Cabral’s right lower back with no exit wound; the 

slug was recovered from Cabral’s pelvis. The pathologist testified, even though three 

bullets hit Cabral, the cause of Cabral’s death was the single gunshot wound to the head.

Christian Martinez’s Testimony and Previous Statements

Christian Martinez (Christian), defendant’s brother, testified he and his other 

brother (Zachary) were in the car with defendant on the day of the shooting. Christian 

was in the backseat and Zachary was driving. About 20 to 30 minutes before the 

shooting, they pulled up at a stop sign in front of a liquor store. A group of four or five 

Northerners were coming out of the liquor store; they were “right next to the car,” “steps 

away.” The group included Manuel and Cabral.

The Northerners were “throwing up” gang signs at defendant and were “‘talking 

shit to him’”; they were surrounding the car on defendant’s side. Cabral was “the main 

one that started everything,” “[h]e was standing in front of everybody.” “One of the 

Northerners threw up a gang sign that was AVL,” which is a known Norteño gang in 

Avenal. Christian testified he saw one of the Northerners lift up his shirt, symbolizing he 

had a gun or knife. Christian saw a “white guy with curly hair” flash a chrome gun, but 

he did not pull it out. The interaction lasted approximately two to three minutes.

Christian believed the interaction went on for that long because the Northerners did not 
7.

like defendant. Defendant did not respond; “he was just laughing.” Christian thought 

defendant “was pretty upset” and that he “felt threatened when they told him stuff,” but 

no one actually threatened defendant.

According to Christian, they ignored the Northerners and left to fill gas. Then, 

they “went for a little cruise around Avenal” and spotted the group of Northerners again 

walking across the street. Christian testified, as their car stopped at an intersection, the 

group “literally just surrounded the car. They ... didn’t take the crosswalk or anything, 

they just came towards us.” Manuel “was the main one” saying things, mostly to 

defendant, and he was “the first guy that came up ... throwing up his gang signs.” There 

was another individual next to Manuel, and then Cabral and another male were towards 

the back of the car. When Manuel was finished, he went to the back. The group was 

“throwing up [gang signs for] AVL” with their hands. Christian did not see any of the 

individuals touch or try to hurt defendant.

At some point, Christian heard multiple shots fired; he ducked because he thought 

someone was shooting at them. Christian suddenly saw defendant shooting. The group 

of four was walking in front of defendant when defendant fired.

At trial, Christian testified “yes” when he was asked if he saw any of the four men 

at Corcoran and Lassen with any kind of a weapon. He admitted it was the first time he 

had mentioned that anyone besides defendant had a gun. And he was presented with his 

preliminary hearing testimony in which he denied seeing any of the four individuals at 

the intersection of Corcoran and Lassen with a gun.

Christian later testified he did not remember if defendant “really did it or if it was 

someone else.” He denied seeing anyone get hit. He testified he just “stayed down”; he 

was “shocked” and “scared.” At some point, Christian looked back and no one was on 

the ground, but then he looked back again and someone was on the ground.

Christian recalled being interviewed by Investigator Alfred Rivera and Officer 

Segura on the day of the shooting. Investigator Rivera stated Christian reported that he 
8.

and his brothers were stopped at a stop sign outside of the liquor store when four 

individuals approached throwing or flashing gang signs. Investigator Rivera testified 

Christian never told him about a chrome handgun and, in fact, Christian did not “bring 

anything up about anyone having a gun.” Christian also did not tell Investigator Rivera 

“anything that would provoke this” attack. Christian told Investigator Rivera the 

individuals made gestures at the liquor store half an hour before the shooting; but 

Christian said they did not make any gestures right before the shooting. Investigator 

Rivera noted he did ask Christian specifically if, at the liquor store, any of the individuals 

walking across the street had any weapons.

Subsequent Investigation

Officer Chad Medeiros, Sergeant Edmonson, and Officer David Tapia responded 

to a call over dispatch at 15:48 hours regarding a male who was shot and lying in the 

roadway in Avenal. When Officer Medeiros arrived on the scene, he recognized the 

person on the ground as Cabral. Cabral was not moving or making any noise, and he had 

what appeared to be bullet holes in his forehead and lower chest area. Officer Medeiros 

saw multiple people with Cabral as he approached. He recognized two of the people 

from prior contacts as G.M. and Manuel, Cabral’s brother. Officer Medeiros identified a 

photograph of the scene taken from his body camera that was introduced into evidence. 

He noticed Cabral had a tattoos of “V and L” on his shins.

Cabral was searched and everything was emptied out of his pockets; no firearm 

was located. Officer Medeiros searched for shell casings at the scene but did not find 

any. He observed a wall on the east side of the street where the shooting occurred that 

appeared to have a bullet hole in it. The windshield of a vehicle on the street also 

appeared to have been possibly struck by a bullet.

Jason Bietz was an investigator for the Kings County District Attorney’s Office 

and was involved in the investigation of the shooting. Bietz was tasked with searching 

for a silver Chevy Malibu and eventually located one at approximately 7:00 p.m. heading 
9.

in the opposite direction. Bietz was in an unmarked law enforcement car. He made a Uturn to follow the Malibu and noticed it was passing other cars at a high rate of speed. 

Bietz contacted the police department, confirmed the license plate number of the car he 

was following matched that of the suspect vehicle, and requested additional marked law 

enforcement units intercept the Chevy Malibu and conduct an investigative traffic stop. 

Additional units arrived and pulled over the Chevy Malibu.

Officer Medeiros learned the police had located a silver or gray Chevy Malibu on 

State Highway 269 in Avenal, within approximately 10 miles of where Cabral’s body 

was found. Officer Medeiros assisted with detaining the people that were in the car; 

defendant was in the backseat on the passenger side. Officer Medeiros located an 

unloaded ProMag gun magazine, also known as a clip, on the rear seat inside the car. 

The prosecution introduced photographs of the car and the car’s interior. Officer 

Medeiros also located a silver iPhone and a Samsung from inside the car. Officer Tapia 

located a pistol near State Highway 269 “within the same location where the traffic stop 

[of the Chevy Malibu] was conducted.”

An officer transported defendant to the jail and retrieved his clothes and booked 

them into evidence. Defendant told the deputy doing the booking form that he was a 

Southern gang member, specifically a member of TLS.

After collecting evidence from the car, Officer Medeiros returned to the scene of 

the shooting and then the Avenal Police Department where he was informed “they were 

in the process of writing a search warrant for [defendant’s] residence.” Officer Medeiros 

went to defendant’s home and searched defendant’s dresser. He found “a loaded .357 

Magnum round” and an expended “shell casing of a .38 Special.”

The prosecution’s gang expert, Officer Segura, was a detective at the time of the 

investigation. He contacted defendant at the police department approximately three to 

four hours after the shooting. Defendant had a “blue bandana on his person.” Segura 

explained, “[r]egardless of whether they are Norteno gang members or Sureño gang 
10.

members, blue or red bandanas is [sic] something that is often found on a gang member’s 

person and that is ... use[d] ... to represent the color” of the gang of which the person is a 

member. He explained wearing or “flashing” a blue bandana would tell “other rival gang 

members or the general public that they are members of the Sureño gang.” The police 

also recovered from defendant’s “person,” a piece of paper listing the “13 Bonds,” which 

are the rules for Sureño gang members.

Segura interviewed defendant and the prosecutor introduced an audio recording of 

the interview at trial. Defendant confessed during the interview that he committed the 

shooting.

Defendant told Segura he first saw Cabral at Rice’s Liquor Store in Avenal. 

Defendant then went to get gas at Amigos Gas Station, which is in Sureño territory that

Sureños claim “as their own.” Defendant then saw Cabral again at the intersection of 

Corcoran and Lassen, where defendant shot and killed him before leaving. Defendant 

reported the “people who were walking were demonstrating as if they were carrying 

some type of weapon,” meaning they were reaching into their pockets as if they had a 

weapon. “In the past [defendant] had had several firearms pulled out on him; however, 

the people who pulled a firearm ... out at him did not pull the trigger, and in this case 

[defendant said] ... he had to ... prove to the rival gang members that he is willing to pull 

the trigger,” meaning he was willing to shoot people.

Segura explained defendant was stopped in a silver Chevy Malibu approximately 

four or five miles away from the location of the shooting. Segura opined, often times, 

firearms used in a specific crime will “be either traded or disposed of to conceal the 

evidentiary value ... that particular firearm has.”

An officer swabbed defendant’s hands for gunshot residue immediately after 

defendant’s interview with Officer Segura. A senior criminalist from the Department of 

Justice Bureau of Forensic Science explained at trial the results from the gunshot residue 

samples taken from defendant. From the gunshot residue “stubs,” she “identified one 
11.

characteristic gunshot residue particle on one of the hand samples, and ... three particles 

that are consistent with gunshot residue on the hand samples.” A particle classified as 

“characteristic gunshot residue” contains all three elements typically seen in conventional 

ammunition primers—lead, barium, and antimony. When only two of these elements are 

present, the particle is deemed to be “consistent with gunshot residue, which basically 

means it’s probably gunshot residue, but there is a remote possibility that it could be from 

something else in the physical world.” She explained, typically after four to six hours,

there is very little gunshot residue left on the hands.

Vicente Guerrero, a latent print analyst, testified he examined latent prints taken 

from the magazine “related to the case.” He compared the latent prints with defendant’s 

palm prints and identified the latent prints as defendant’s left palm; “they matched.”

The prosecution also introduced images of a Facebook message exchange obtained 

from a search pursuant to a warrant of defendant’s Facebook account. The message 

recipient’s name was “PorosTownBEactive.” In one message, defendant stated, in 

relevant part, “‘I’m trying to trade my 357 for something else any of your homey’s down 

to trade.’” Investigator Rivera testified a .357 Magnum handgun is commonly referred to 

in subculture as a 357. PorosTownBEactive responded, “‘Does the 357 work’” and 

“‘send a pic g.’” Defendant responded, “‘Yeah it works g and look,’” with a photograph 

of a gun. PorosTownBEactive then said, “‘wud u trade it for a nine,’” and “‘I got 2 clips 

with it right now g,’” sending a picture of a gun resembling the gun defendant reportedly

threw from the Chevy Malibu before he was arrested on August 20, 2016. Defendant 

responded, “‘Yeah I’m down to trade it would kind of strap is that.’” 

PorosTownBEactive wrote back, “‘Its a high point c9,’” and sent an address in 

Porterville. Defendant replied he was on his way and stated his gun was “automatic.” 

The messages were exchanged on the afternoon of August 20, 2016.

An investigator for the district attorney’s office, Chris Jackson, obtained and

reviewed surveillance footage from a house on the corner of Lassen and Corcoran from 
12.

August 20, 2016. Jackson testified the timestamp in the video was approximately an hour 

off. The prosecutor introduced an excerpt of the surveillance video into evidence. 

Jackson explained at timestamp 6:45:59 p.m., individuals can be seen walking towards 

the location where Cabral’s body was later found. At timestamp 6:47:20, Jackson 

explained a silver Chevy Malibu can be seen behind a light pole (“kind of obscured”) 

coming from south all the way north until it was out of view completely; Jackson 

explained the car was coming from the location where Cabral was found.

Jackson also explained the Avenal Police Department provided him an iPhone 

with photographs on it and Jackson verified the dates the photographs were taken. One 

photograph was a picture of defendant standing in a room holding a Ruger Security-Six 

.357 Magnum revolver; the file was created on the day of the shooting with a timestamp 

of 1534 hours (3:34 p.m.). Jackson also found a second photograph depicting defendant 

with the same firearm in his waistband; the file was created at the same time as the other 

photograph file. Jackson explained, the pictured firearm would not eject a bullet casing, 

the casing would stay inside the revolver. Officer Jackson extracted other content from 

the iPhone and saved it on a compact disc.

Jessica Winn with the Department of Justice Bureau of Forensic Services analyzed 

two bullets or projectiles and two cartridge cases (the remnant of a round fired from a 

gun) in this case. She analyzed their class characteristics and entered the information into 

a database that generated a report of possible firearms that fired them. The bullets and 

cartridge cases were consistent with revolver rounds fired by a Ruger, Smith and Wesson, 

Taurus, Herbert, or an off brand Herbert and Schmidt. Winn opined the gun pictured in 

the photograph defendant sent in the Facebook exchange was consistent with a Ruger 

revolver.

As part of the investigation into the August 20, 2016, shooting, law enforcement 

collected surveillance footage from the driveway of defendant’s home that the 

prosecution introduced at trial. Investigator Rivera testified the footage was taken on 
13.

August 4, 2016, and it depicts “two subjects on the far side of the video that kind of go 

across the screen” and “three subjects in the driveway” of defendant’s residence. Rivera 

identified defendant, Christian, and David Villanueva running across the screen in the 

footage. He explained, “[T]here’s some gestures made across from the two people 

crossing the street as well as the three people in the driveway. And at one point they ... 

engage in a physical altercation.”

Investigator Rivera testified he was also involved in the investigation of another

incident that occurred the day before the shooting of Cabral. He personally saw bullets 

recovered from the area where police were dispatched. One victim reported gunfire hit 

the victim’s house. Rivera explained David Villanueva was a person of interest in 

connection with the incident.

Gang Evidence

In 2015, Officer Segura was an investigator in the Kings County Gang Task Force 

assigned to Avenal. The task force conducted gang intervention and suppression and 

researched suspected gang members to present that information in court. Officer Segura 

had testified as a gang expert approximately five times regarding the “Avenal Varrios 

Lomas, AVL, which is the Norteno criminal street gang subset in the City of Avenal 

along with the Tiny Locos Sureños, TLS, criminal street gang subset for the Sureños.”

Officer Segura explained, in Avenal, you most commonly see members of the 

Norteño and Sureño gangs. He explained the two gangs did not get along and, based on 

the gang subculture, they are rivals. Officer Segura testified Tiny Locos Sureños is a 

common Sureño subset found in Avenal that was associated with the larger Sureño gang 

related to the Mexican Mafia. It had “at least 30” members. He explained all the subsets 

worked together in conjunction with other gangs under the Sureño umbrella. The Tiny 

Locos Sureños associated with the color blue; all Sureños use the color blue. The 

following signs or symbols are commonly associated with the Tiny Locos Sureños: the 

letters “TLS,” the word “Sur,” “S-U-R,” “South Side,” the number 13, the Roman 
14.

numeral for the number 13 “XIII,” and “X3.” Officer Segura testified the primary 

activities of the Tiny Locos Sureños “are burglaries, robberies, assaults with deadly 

weapons, possession of drugs for sales, auto theft, even murder.” AVL, or Avenal Varrio 

Lomas, is a subset of the Norteño criminal street gang in Avenal and a rival of TLS.

Officer Segura explained: “‘[P]utting in work’ in the gang means earning your 

place within the gang through actions that specifically benefit that gang itself, whether 

it’s monetary actions, selling drugs, or burglarizing residences, or whether it’s 

committing crimes against the enemy and instilling enough fear and intimidation in the 

rivals to where often times [sic] the rivals won’t even retaliate against them because of 

that severity of the crime.” He opined, “[K]illing a rival gang member would probably 

be the ... most prestigious ... action that a gang member can commit, because they are 

eliminating a rival, therefore, the rival gang has less active members within the gang.” 

Additionally, “within the gang subculture, they are often expected to, what gang 

members call, ‘take flight,’ which pretty much means if they see a rival gang member, 

you are supposed to attack that rival gang member on sight.” “[T]he reason for that 

expectation is because they expect each gang member to act and to prove their worthiness 

to be part of a specific gang by certain actions, such as taking flight on a rival.” He 

discussed the importance of respect in gang culture and explained signs of disrespect 

could include “a stare down or flashing rival gang signs, verbal words, or even letters if a 

rival gang member is vocalizing, for example, AVL, that is a sign of disrespect.” Officer 

Segura also explained the concept of “snitching in gang culture.” He explained, even if a 

gang member kills a rival gang member and a rival gang member witnesses it, he still is 

not allowed to snitch. “[H]is own gang will essentially push him out of the gang and 

discipline him for cooperating with law enforcement.”

The prosecution introduced photographs of defendant that showed a “TLS” tattoo 

on defendant’s right upper arm and three dots tattooed on the left outer web of 

defendant’s hand. Officer Segura testified “TLS” is a sign or symbol of the Tiny Locos 
15.

Sureños and it is common for members of Tiny Locos Sureños to get “TLS” tattooed on 

their bodies. They also introduced a photograph of defendant with a gun in his waistband 

and making a hand sign associated with “TLS.”

Officer Segura reviewed the contents of a phone recovered from the Chevy Malibu 

in which defendant was stopped, including several videos on the phone. The prosecution 

presented a video from the phone of defendant burning a red bandana. Officer Segura 

opined the video was significant because, “respect is a huge aspect of the gang 

subculture, and with the defendant burning a red bandana that is the defendant directly—

it’s a manner of which the defendant is telling Nortenos that he is disrespecting them by 

essentially burning the—the red bandana or the color red, the color the Norteno criminal 

street gang represents.”

There was also a photograph on the phone of “three possible males displaying 

gang signs, one of which has a blue bandana on his head, a blue bandana ... concealing 

his face, and ... what appears to be a revolver in his right hand.” The “subject’s left hand 

... is displaying what appears to be the letter T.” “The second subject is in the back 

wearing a ball cap concealing his face with a blue bandana, and with his right hand ... 

displaying the letter W.” “And then the third subject is wearing a blue ball cap, a blue 

bandana concealing his face, a number 19 sports jersey, and with his right hand he is 

demonstrating a number 1 and with the left hand is demonstrating a number 3.” Officer 

Segura testified he recognized defendant as one of the individuals pictured. He also 

found it significant the photograph was on defendant’s phone, noting “it is very common 

especially in gang investigations for gang members to pose in gang photographs 

essentially showing off firearms, money, drugs, the gang lifestyle.” It “goes to prove that 

members of a particular gang in this instance TLS do possess firearms, and it’s 

essentially a ... warning to not only the general public, law enforcement, but the rival 

gang members ... if you challenge TLS this is what you will face.”
16.

Officer Nate Estrada testified he contacted defendant on September 19, 2014. 

Defendant was wearing a hat with the letter “A” on it, a blue shirt, blue jeans, and had a 

cross tattoo on his right hand; he was with Noe Duran and Juan Contreras. Defendant 

stated he was “associated with TLS.” Officer Randall Doherty testified he contacted 

defendant on November 21, 2014. Defendant was wearing a blue hooded sweater, blue 

jeans, and white tennis shoes. Officer Segura testified these contacts were significant in 

determining defendant is affiliated with a gang in that defendant was wearing blue, the 

color worn by Sureño gang members.

Officer Segura also personally contacted defendant in June 2015 with Raul 

Ramirez and Rafael Flores, who Officer Segura knew to be TLS members based on their 

prior admissions, their tattoos, and their clothing. Officer Segura testified, during this 

contact with defendant, defendant admitted he grew up around Sureños and he liked the 

lifestyle. Defendant admitted to Officer Segura “that he was walked in to the gang.” 

Rafael Flores and Raul Ramirez began exchanging TLS Sureño gang signs at each other 

and when Officer Segura asked if they were active, they laughed and said, “‘we’re active 

as fuck.’”

Officer Segura contacted defendant again on February 4, 2016, after a school 

resource officer contacted the police about a physical fight in progress outside the high 

school. Defendant told Officer Segura he was involved “in a physical altercation with 

two male juveniles” who made gestures at him “like a neck slice,” a sign of disrespect. 

Officer Segura explained, “[i]n the gang subculture as a gang member you are required to 

react to any type of disrespect, especially from rival gang members.”

Officer Segura also testified, in the surveillance footage taken from defendant’s 

home, numerous gang signs were displayed. In the video, defendant lifted his shirt to 

show the TLS tattoo on his arm to the people with whom he was fighting. At one point, 

defendant kneeled down and appeared to be demonstrating a “T,” which is a sign or 

symbol of the Tiny Locos Sureños. Defendant also lifted the front of his shirt and made a 
17.

motion towards the other two people “demonstrating he had a gun in his hand, and he 

pointed it at them.” Officer Segura testified, in conducting an investigation into that 

incident, they were able to identify the other two people involved in the confrontation as 

AVL Norteño gang members.

The prosecutor posed Officer Segura with the following hypothetical scenario:

“I want you to assume that an admitted member of TLS is at Rice’s 

Liquor in Avenal. While he’s at the store a group of Nortenos are near him, 

I don’t know how near them, but they are flashing gang signs of some type, 

they are disrespecting him. This caused the TLS member to feel 

disrespected.

“The TLS member then drove around town with his two brothers, 

and they got gas. 20 to 30 minutes after that initial interaction, the member 

of TLS drove up to a stop sign, saw the individuals that disrespected him 

crossing the street, and open fire [sic] at them. The ... statement from the 

member of TLS was that he saw them talking shit so he whipped it out and 

shot six times.

“The TLS member admitted he knew the men were Northerners and 

was shooting from the passenger seat of the vehicle, and assume he had the 

intent to kill the group. Then the TLS member left Avenal went to 

Porterville and ... exchanged that gun for a completely different gun. 

[¶] ...¶

“One of the group of Nortenos died. He was shot twice from behind, 

a bullet entering his ear and exiting his forehead killing him.”

Officer Segura opined the crime in the hypothetical would benefit the Tiny Locos 

Sureños. “The fact that a rival gang member disrespected that TLS gang member, that 

called for immediate retaliation of some sort, whether a physical assault or something 

else. That would benefit the gang due to the fact that that goes to show rival gang 

members that TLS gang members will not be disrespected, and that will ... not be 

tolerated and there will be repercussions for any form of disrespect.” “[I]n essence it will 

instill fear and intimidation in the rival gang members because they will be afraid to 

disrespect Tiny Locos Surenos.” He explained, the crime would “immediately accelerate 

the reputation of [the] TLS gang member [who fired] ... for the mere fact that a rival 
18.

gang member was murdered.” When posed with additional facts that the murder was 

committed in broad daylight in a residential neighborhood, Officer Segura stated such 

circumstances “would make things even better for that gang member because it shows 

that ... particular gang member is not afraid of any repercussions toward law 

enforcement. He’s ... proving to the fellow gang members that he is willing to go the 

extra mile to commit this type of crime in broad daylight in a residential neighborhood.”

The fact the victim was unarmed and not trying to hurt the TLS member showed “that 

TLS gang members are relentless and really aren’t concerned whether or not their ... 

rivals are armed or not. They are ... required to attack a rival on sight, so he is 

essentially just doing ... his part of being a gang member.” The crime “would accelerate 

the reputation [of the whole TLS gang] because there is one less rival out there who is a 

threat to not only the gang itself but individual gang members, and in essence it’s one less 

soldier the rival has.”

Officer Segura noted, based on his experience, Rice’s Liquor is in known Norteño 

territory and, in the hypothetical, the TLS member was willing to go there, hold his 

ground, and eventually retaliate for being disrespected there. He opined the crime 

furthered the activities of TLS in that the crime was “so heinous” that “it would likely 

instill enough fear and intimidation in the general public” that “they may be afraid to 

cooperate with [law enforcement] out of fear of retaliation from TLS gang members.” 

The crime also made it easier for TLS to commit more crimes in the future in that it 

discourages citizen witnesses who witness a TLS gang member crime from cooperating 

with law enforcement out of fear of being killed.

Officer Segura also opined the hypothetical would be active participation in 

TLS—“[b]ecause this TLS gang member ... was disrespected by a rival Norteno gang 

member, ... he is expected to retaliate because if he does not, that shows weakness and 

weakness is not tolerated in the gang subculture. Therefore, ... that gang member 
19.

shooting the rival in retaliation for the disrespect is direct active participation from the 

gang ... he’s essentially punishing him for what he did, disrespecting him.”

Evidence of Predicate Offenses

Officer Abraham Avila testified he personally investigated an assault committed 

by Cesar Tadeo and Juan Flores on February 29, 2016, and he arrested Tadeo in 

connection with the incident. Notably, the court sustained objections to Officer Avila’s 

testimony that Tadeo and Flores were both involved in the assault on a rival gang 

member and that both of them admitted they were associates or members of the Southern 

gang. Avila stated Tadeo informed him he “hung out” with Tiny Locos Sureños. The 

prosecution presented a certified packet related to Tadeo’s wardship petition showing he 

was adjudicated for a violation of section 245, subdivision (a)(4) with a gang 

enhancement. The prosecution also submitted Flores’s juvenile wardship petition 

showing he was adjudicated for a violation of section 245, subdivision (a)(4) with a gang 

enhancement.

At trial, Tadeo denied being a current or former member of the Tiny Locos 

Sureños. He also stated he was not aware of being put on probation for a February 29, 

2016, assault with force likely to cause great bodily injury on a person with the initials 

J.C. Tadeo also stated he was not aware he admitted a gang enhancement under section 

186.22, subdivision (b).

Officer Tapia testified he contacted Tadeo on January 23, 2016. Tadeo was with 

Josiah Arballo outside of a high school. Tadeo had a dirk or dagger, which is a knife, 

concealed on his person and he was wearing blue clothing at the time. Officer Tapia 

asked Tadeo about his gang affiliation and Tadeo stated he was not a Southern gang 

member, but he armed himself with the knife for protection from Northern gang 

members. Officer Rivera testified he contacted Tadeo in January 2016; Tadeo had the 

letters “TLS” written in blue ink on his left arm and the letter “X” and the number “3”

written in blue ink in between his left thumb and index finger. Officer Avila contacted 
20.

Tadeo on September 26, 2015. Officer Avila noticed “Tiny Locos Surenos” written on 

the railing of a balcony at Tadeo’s home.

Officer Segura testified it was significant that Tiny Locos Surenos was written on 

Tadeo’s balcony because Tadeo was “displaying that he is an active participant in a 

gang.” He testified it was also significant the home had “fuck the police” displayed

because gang subsets “rival the police who enforce the laws that the gangs violate.” It 

was also significant Tadeo was contacted at a school campus armed with a knife, which 

“goes to show that TLS gang members arm themselves.” Additionally, Tadeo’s 

admission to Officer Tapia that he had a knife for protection against his rivals “tells me 

that he is an active participant in the Tiny Locos Surenos criminal street gang.” He 

explained AVL is the Norteño criminal street gang subset in Avenal, and they are rivals 

of TLS.

Officer Avila testified he went to Juan Carlos Flores’s home on September 26, 

2016. Officer Avila saw “Sur 13” and “Varrio Tiny Locos” written on the entertainment 

center in Flores’s room. Officer Rivera also contacted Flores in May 2015 and found 

“various writings” in Flores’s bedroom that said “X3,” S-U-R, “‘the blue life,’” and 

“TLS.” The letters “TLS” were also on a small cabinet in Flores’s room; also found was 

a razor attached to a pen. In September 2015, Rivera contacted Flores again; Flores was 

wearing blue shoes and had a mail opener in his pocket that had been sharpened to be a 

double-sided blade.

Officer Segura testified, as an expert on TLS, it was significant that Flores had 

gang writings in his room. He explained “[t]he fact that gang writings are found in an 

individual’s personal property or on their personal property ... tells me that that person is 

displaying to others that he is ... an active participant in a criminal street gang. In this 

case ..., that individual is saying he is an active participant in TLS.” He also testified 

Flores’s blue shoes were significant because blue is a sign or symbol used by the Tiny 

Locos Sureños. The word “Sur” is also a sign or symbol of the Tiny Locos Sureños. 
21.

Officer Segura opined Flores was a member of the Tiny Locos Sureños criminal street 

gang based on Flores’s “contacts, his admission to being armed with various types of 

weapons, the graffiti found on his personal property, along with writings found in his 

possession.”

The prosecution also introduced a photograph of defendant with an individual 

named Alfredo Ayala. Investigator Rivera testified he had investigated Ayala for prior 

gang-involved shootings and other drug-related offenses. He noted Ayala had a “TLS”

tattoo across his chest. Officer Segura testified Ayala also has a tattoo of “NK,” which 

means “Norteno killer,” on his face.

Officer Segura was involved in an investigation that resulted in Ayala being 

convicted of attempted murder with a firearm. The prosecution admitted a certified 

information and abstract of judgment evidencing Ayala pleaded no contest to attempted 

murder and possession of a controlled substance with a loaded firearm with a gun 

enhancement in 2018 based on conduct alleged to have occurred on or about 

September 22, 2016. Officer Segura opined that Ayala is a member of Tiny Locos 

Sureños based on his contacts with him, the people with whom he was “in concert with 

during those contacts,” Ayala’s admission, his tattoos, and the clothing and colors he 

often wears. He also opined that assault with force likely to cause great bodily injury and 

attempted murder (a shooting) are primary activities of the Tiny Locos Sureños.

Directed Verdict Granted on Counts 2 and 3

After the People rested, defense counsel moved for a directed verdict with regard 

to counts 2 and 3, which alleged attempted, deliberate, and premeditated murder (§ 664, 

subd. (a), 187, subd. (a)) of Manuel Cabral and Miguel Rosales, respectively. The 

defense asserted a reasonable jury could not find guilt beyond a reasonable doubt for 

these two charges.
22.

The court granted the motion. It found the evidence insufficient for a reasonable 

jury to find beyond a reasonable doubt that defendant committed attempted murder as to 

those individuals named in counts 2 and 3.

Defense Evidence

Defendant testified on his own behalf regarding the August 20, 2016, incident. 

Defendant testified, that day, he and his brothers Zachary and Christian were driving; 

defendant was in the front passenger seat of the car. They stopped at a stop sign across 

the street from the liquor store. Defendant saw a group of four or five Northerners 

crossing the street from the liquor store. The group came up to the car and started 

taunting defendant. “[T]hey were kind of ... surrounding the car” where defendant was

located on the passenger side. The group was “throwing up gang signs,” “looking at the 

car, getting near it.” Defendant testified it “kind of looked like one of them lifted up their 

shirt,” which scared defendant. “It looked like ... he had something like a weapon or 

something.” Defendant explained, when someone lifts up their shirt, it “shows that they 

have a gun.” The other individuals were throwing gang signs. Defendant and his 

brothers drove off and went to the gas station to get gas. Then, they drove to a friend’s 

house to pick him up, but he took too long so they left. So, they started driving around 

town.

At some point, defendant and his brothers “met up with the same people” as they 

were driving on Corcoran. As defendant’s car stopped at a stop sign, the group was 

taunting him again. Defendant testified he “got scared because they were doing the same 

things,” taunting him, throwing up their gang signs, trying to come up to the car, and 

“showing that they had—it kind of looked like they had weapons, ... [s]howing that they 

had weapons” by lifting up their shirt. Defendant saw a chrome gun and it made him 

afraid. He later stated Cabral was the person he saw with the chrome gun; Cabral lifted 

his shirt and “he had [the gun] right ... on his waistband.” Defendant felt he “was in 

danger. Because you know when a gang member shows a gun sometimes they use it.” 
23.

“And when you are with your family, you know, you can’t take that risk when you are a 

gang member and you have your family next to you.” Defendant testified he “could have 

been” in immediate danger and that he knew he “was in danger”; he “didn’t know if any 

of the other people there had a gun.” He explained, “Flashing a gun at me, coming up to 

my car, of course ... they were trying to harm us.”

Defendant admitted he fired four, five, or maybe six shots in the group’s direction. 

He denied he was angry when he shot; instead, he testified he was “scared.” He was not 

aiming for anyone specifically; he “was just shooting to scare them away.” Defendant 

testified he was trying to defend his family; he thought these men were going to kill him. 

He explained, “After all the things I have been through with them, gang members 

pointing guns at me, of course I’m going to be scared.” He stated he shot Cabral three 

times because he was defending himself.

Defendant admitted on cross-examination that it would be important to tell the 

police he was defending himself, but he did not tell that to the police. He stated he was 

an active member of the gang TLS and there were “repercussions for snitching.”

However, he “snitched” to the police on himself, noting “there’s nothing against that 

when you are an active gang member.” He thought it was okay to tell the police he 

thought the individual walking had a gun, but not that he actually had a gun.

Defendant admitted he got rid of the gun after the shooting but stated he “already 

had intentions to get rid of the gun.” He wanted to trade the gun for another one because 

he “felt like it.” He testified the messages regarding the gun occurred hours before the 

murder. He explained he always had a gun on him for protection; he denied it was in 

case he saw a Northerner. He further testified that he got rid of another gun when he 

came back to Avenal because he did not want the police to find it.

Defendant denied the shooting furthered the activities of the Sureños, stating it 

“had really nothing to do with my gang life. [M]y self-defense had nothing to do with it, 
24.

so it didn’t really support the gang at all.” He testified, “Even though I was an active 

gang member it was self-defense.”

Verdict

The jury convicted defendant of the first degree murder of Sergio Cabral (count 1) 

and found true that the murder was intentional and perpetrated by means of discharging a 

firearm from a motor vehicle intentionally at another person and persons outside the 

vehicle with the intent to inflict death, within the meaning of section 190.2, subdivision

(a)(21) and that the murder was carried out to further the activities of the criminal street 

gang within the meaning of section 190.2, subdivision (a)(22). The jury also found true 

allegations count 1 was committed for the benefit of a criminal street gang (§ 186.22, 

subd. (b)), that defendant personally used a firearm during its commission within the 

meaning of sections 12022.5, subdivision (a), and 12022.53, subdivision (b), that 

defendant personally and intentionally discharged a firearm within the meaning of section 

12022.53, subdivisions (c), and that defendant personally and intentionally discharged a 

firearm that proximately caused death within the meaning of section 12022.53, 

subdivision (d).

The jury found defendant not guilty of attempted murder as to Ramon Perez, count 

4, and acquitted defendant of the related lesser included offenses as to that count.

Sentencing

Before sentencing defendant, the court noted it reviewed Miller v. Alabama (2012) 

567 U.S. 460 and considered “the distinction between children and adults, and the fact 

that they are constitutionally different in that, number one, children have a lack of 

maturity, and an undeveloped sense of responsibility leading to recklessness and 

impulsivity, and risk taking.” “Two, children are more vulnerable to negative and outside 

pressure. They have limited control over their own environment, and lack the ability to 

extricate themselves [from] crime producing influences.” “And three, the child’s 
25.

character is not well formed. Their traits are less fixed, and less likely to be evidence of 

irretrievable depravity.”

The court concluded, “Based on the defendant’s limited intellectual functioning, 

his lack of criminal record, the fact that he did obtain a GED while in custody, he 

proclaims himself to be a dropout. The fact that his mother failed to follow through with 

his counseling and CVRC services, which were factors outside of his control, the Court 

will not be imposing life without the possibility of parole.”

Instead, the court sentenced defendant to 25 years to life as to count 1 for the 

violation of section 187, subdivision (a) with the enhancements pursuant to sections 

186.22, subdivision (b)(5), and section 190.2, subdivision (a). The court struck the 

section 12022.5 enhancement and imposed an additional 25 years to life for the section 

12022.53, subdivision (d) enhancement, for a total aggregate term of 50 years to life. 

The court noted, it considered that it had discretion to strike the firearm enhancement. 

However, “at 50 years to life [defendant] is still of a young age, he can still get out of 

custody if he behaves himself well in state prison. So the 50 years to life in the Court’s 

opinion does not equate to life without the possibility of parole.”

DISCUSSION

I. Defendant’s Right to a Public Trial Was Not Violated

Defendant first argues the court erred in excluding his sister from the trial without 

considering the requisite factors, thereby violating defendant’s right to a public trial. We 

disagree.

A. Relevant Background

On the second day of trial, the court took a recess before which it admonished the 

jury “not to talk about the case or about any of the people or any subject involved in it 

with anyone, including the—.” The court was interrupted by a loud noise and indicated it 

would “take care of that.” After the jury left the courtroom the following discussion took 

place:
26.

“[THE COURT:] ... Two of the spectators that were seated behind 

[defendant], I believe one is [defendant’s] mother. Correct?

“THE DEFENDANT: No.

“[DEFENSE COUNSEL]: No, no.

“THE COURT: Okay. Not even close.

“[PROSECUTOR]: Is that the aunt?

“THE DEFENDANT: My mom’s aunt.

“THE COURT: Your mom’s—okay. Your mother’s aunt. [¶] And 

then there was another younger person.

“THE DEFENDANT: My little sister.

“THE COURT: That’s your little sister? [¶] All right. I believe it’s 

your little sister that rushed out of the courtroom, slammed the door against 

the hallway causing a very loud noise, and then it was your aunt that then 

said it wasn’t her. So I’m assuming it was your sister, she’ll be precluded 

from coming back into this courtroom.

“I will talk to her and see if—I may change my mind, but right now 

she’s not to come into the courtroom because of that disruption. That was 

in front of the jury.”

Later, the court again noted there was “a little disturbance ... right before we took 

a break. [Defendant’s] ... little sister left the courtroom.” The court admonished, “she is 

not to come into the court” “until she talks to me.” A voice (not attributed to a particular 

individual in the transcript) responded, “Okay.” Defendant stated, “I’m sorry about that, 

ma’am.” The court responded, “She needs to learn to calm down,” and then engaged in 

the following exchange with defendant’s sister:

“THE COURT: ... Ma’am, what is your name? What is your name?

“VOICE NUMBER TWO: Destiny.

“THE COURT: Destiny, do you want to stay in this courtroom and 

watch this trial?

“VOICE NUMBER TWO: Um not really, I’d rather stay out.
27.

“THE COURT: Good. You are ordered to stay out then. Thank you.

“VOICE NUMBER TWO: All right.

“THE COURT: All right. So now you know who she is, if she comes 

in escort her outside.”

B. Standard of Review and Applicable Law

“Every person charged with a criminal offense has a constitutional right to a 

public trial, that is a trial which is open to the general public at all times.”

3

(People v. 

Woodward, supra, 4 Cal.4th at p. 382; see U.S. Const., amends. VI, XIV; Cal. Const. art. 

I, § 15; see also Pen. Code § 686, subd. 1.) “The Sixth Amendment public trial guarantee 

creates a ‘presumption of openness’ that can be rebutted only by a showing that exclusion 

of the public was necessary to protect some ‘higher value,’ such as the defendant’s right 

to a fair trial, or the government’s interest in preserving the confidentiality of the 

proceedings.” (People v. Woodward, supra, at p. 383; accord, Waller v. Georgia (1984) 

467 U.S. 39, 44–45 (Waller).) “Such circumstances will be rare, however, and the 

balance of interests must be struck with special care.” (Waller, supra, at p. 45.) 

However, “both the defendant’s and the public’s right may be subjected to reasonable 

restrictions that are necessary or convenient to the orderly procedure of trial, and the trial 

court retains broad discretion to control courtroom proceedings in a manner directed 

toward promoting the safety of witnesses.” (People v. Pena (2012) 207 Cal.App.4th 944, 

949; People v. Esquibel (2008) 166 Cal.App.4th 539, 552.)

C. Analysis

Defendant argues, in Waller, supra, 467 U.S. 39, the Supreme Court identified 

four requirements that must be satisfied before public access to a criminal proceeding 

may be denied: (1) there must be “an overriding interest that is likely to be prejudiced” if 

3

“Because a defendant’s state constitutional public trial right appears to be coextensive 

with the federal guarantee [citation], further general references to the ‘public trial right’ or 

‘public trial guarantee’ are intended to include both the state and federal constitutional 

provisions.” (People v. Woodward (1992) 4 Cal.4th 376, 381.)
28.

the proceeding is left open; (2) the closure must be “no broader than necessary” to protect 

that interest; (3) the trial court “must consider reasonable alternatives to closing the 

proceeding”; and (4) the trial court must articulate the interest being protected and make 

specific findings sufficient for a reviewing court to determine whether the closure was 

proper. He asserts the court did not “attempt to, or satisfy a single Waller-factor before 

permanently prohibiting Destiny from attending [defendant’s] trial.” He argues the 

“courtroom closure—banning Destiny from ever returning to her brother’s trial—was 

manifestly overbroad”; the court failed to consider any alternatives to banning her from 

attending the trial; and the court did not state a justification for excluding Destiny or 

identify an “overriding interest” that was likely to be prejudiced if she was not excluded.

Defendant also asserts, that Destiny “wanted” to be excluded did not warrant the “court’s 

drastic response,” in part, because “Destiny could have not meant what she said, she 

could have changed her mind, or she could have made the choice not to attend the trial.” 

We disagree with defendant’s contentions.

First, defendant has forfeited his argument by failing to object below. “‘A 

defendant “may, by his own acts or acquiescence, waive his right [to a public trial] and 

thereby preclude any subsequent challenge by him of an order excluding the public. 

Unlike the jury trial right which requires an express personal waiver [citation], the 

constitutional guarantee of a public trial may be waived by acquiescence of the defendant 

in an order of exclusion.” [Citations.]’” (People v. Virgil (2011) 51 Cal.4th 1210, 1237; 

accord, People v. Catlin (2001) 26 Cal.4th 81, 161.) And here, defense counsel did not 

object to the court’s order excluding defendant’s sister from the remainder of trial on the 

ground the order violated defendant’s right to a public trial; thus, his claim is forfeited.

(See People v. Gonzales (2012) 54 Cal.4th 1234, 1292, fn. 27 [“Defendant did not assert 

his right to a public trial below, so the trial court had no occasion to consider it. That 

claim of error was forfeited”]; People v. Catlin, supra, at p. 161 [defendant’s failure to 
29.

object that proceedings violated his right to a public trial “constitutes a waiver of the 

claim on appeal”].)

Irrespective, defendant’s claim fails on its merits. “[T]he issue whether an 

accused has been denied his constitutional right to a public trial cannot be determined in 

the abstract, but must be determined by reference to the facts of the particular case.” 

(People v. Esquibel, supra, 166 Cal.App.4th at p. 553.)

Considering the particular facts of the instant case, we cannot conclude 

defendant’s right to a public trial was violated. Here, the court was admonishing the jury 

when it was interrupted by a loud noise. The court explained defendant’s sister caused a 

“disruption” and stated she would be precluded from coming back into the courtroom as a 

result. However, the court then revised this statement, crafting a more limited remedy, 

advising that defendant’s sister would need to speak to the court before being allowed to 

return. Thus, the court did not initially ban defendant’s sister from attending the 

remainder of the trial, but rather pursued an alternative measure—the court advised that 

she was to speak with the court before being allowed to attend. However, when 

defendant’s sister appeared before the court, she indicated she did not want to be present. 

Accordingly, in light of the disruption she caused and her representation that she did not 

want to be there, the court ordered her to be excluded.

We cannot conclude the court’s order excluding defendant’s sister under these 

circumstances violated defendant’s right to a public trial. Rather, the court appropriately 

considered the need for a fair and orderly trial and imposed a narrow and tailored remedy 

in light of the disruption caused by defendant’s sister and her express statement that she 

did not want to be present. (See People v. Holloway (2004) 33 Cal.4th 96, 148 [“The 

temporary exclusion of a single spectator, intended to prevent potentially disruptive 

displays, did not constitute a cognizable deprivation of the public trial right”]; accord,

People v. Woodward, supra, 4 Cal.4th at p. 385 [“Trial courts possess broad power to 

control their courtrooms and maintain order and security”]; see also People v. Virgil, 
30.

supra, 51 Cal.4th at p. 1237 [“We have ... held that even a partial or temporary exclusion 

of the public from certain proceedings, if justified, imposes no more than a de minimus 

restriction on the constitutional right to a public trial”].)

In Waller, the trial court granted the prosecution’s request to close a lengthy 

suppression hearing, over the defendant’s objection that the closure violated his Sixth 

Amendment right to a public trial. (Waller, supra, 467 U.S. at pp. 41–43.) The United 

States Supreme Court considered “the extent to which a hearing on a motion to suppress 

evidence may be closed to the public over the objection of the defendant consistently with 

the Sixth and Fourteenth Amendment right to a public trial.” (Id. at pp. 40–41, italics

added.) In considering the issue, the Waller court restated the “applicable rules”: “‘The 

presumption of openness may be overcome only by an overriding interest based on 

findings that closure is essential to preserve higher values and is narrowly tailored to 

serve that interest. The interest is to be articulated along with findings specific enough 

that a reviewing court can determine whether the closure order was properly entered.’”

(Id. at p. 45.) The Waller court held the defendant’s right to a public trial was violated by 

the court’s closing of the seven-day suppression hearing to the public. (Id. at p. 48.) The 

court reasoned “the State’s proffer was not specific as to whose privacy interests might be 

infringed, how they would be infringed, what portions of the tapes might infringe them, 

and what portion of the evidence consisted of tapes [from wiretapped phone calls]. As a 

result, the trial court’s findings were broad and general, and did not purport to justify 

closure of the entire hearing.” (Ibid.) The trial court did not consider alternatives to 

immediate closure of the entire hearing, such as closing only those parts of the hearing 

that jeopardized the interests advanced. (Id. at pp. 48–49.) And the closure was “far 

more extensive than necessary” in that the wiretap call tapes, the basis for the closure, 

only lasted two and a half hours of the seven-day hearing and “few of them mentioned or 

involved parties not then before the court.” (Id. at p. 49.)
31.

Waller is inapposite. Initially, the conditional exclusion of a single disruptive 

spectator who indicated her desire not to attend trial—at issue here—is markedly 

different from the preemptive closure of the entire courtroom to all the public based on a 

limited privacy concern that was at issue in Waller. (See People v. Woodward, supra, 4 

Cal.4th at pp. 384–385 [concluding temporary closure of courtroom to new spectators 

during closing argument did not violate defendant’s right to a public trial and cited cases, 

including Waller, were inapposite, reasoning in part, “[u]nlike the situation in the public 

exclusion cases relied on by defendant, the courtroom was never cleared to remove all 

spectators for a significant period”]; see also People v. Kocontes (2022) 86 Cal.App.5th 

787, 876 [“Courts have drawn a distinction between complete closures and partial 

closures”].) Additionally, Waller sets forth the procedures and findings necessary to 

close a court proceeding over “the objection[] of the accused.” (See Waller, supra, 467 

U.S. at p. 47 [holding, under the 6th Amend., any closure of a suppression hearing “over 

the objections of the accused” must meet articulated tests].) And as discussed, here, 

defendant did not object to the exclusion of his sister from the trial on any basis, 

including on the grounds that the exclusion violated his right to a public trial.

Furthermore, the exclusion of defendant’s sister from the courtroom under the 

circumstances here did not implicate any of the rationales underlying the right to a public 

trial, particularly considering defendant’s sister’s representation that she did not even 

want to attend. “‘“‘The requirement of a public trial is for the benefit of the accused; that 

the public may see he is fairly dealt with and not unjustly condemned, and that the 

presence of interested spectators may keep his triers keenly alive to a sense of their 

responsibility and to the importance of their functions....’”’ [Citations.] [¶] In addition 

to ensuring that judge and prosecutor carry out their duties responsibly, a public trial 

encourages witnesses to come forward and discourages perjury.” (Waller, supra, 467 

U.S. at p. 46, fn. omitted; see People v. Woodward, supra, 4 Cal.4th at p. 385.) 

Defendant’s sister’s exclusion from the courtroom under the circumstances in this case 
32.

did not affect any of these goals. Rather, under the particular facts of this case, we cannot 

conclude defendant’s right to a public trial was violated. (See People v. Bui (2010) 183 

Cal.App.4th 675, 682 [noting “[t]he California Supreme Court has recognized ... that not 

every closure of a trial or exclusion of certain spectators, rises to the level of a 

constitutional violation, and certain exclusions or closures are so ‘de minimus’ that they 

do not violate a defendant’s constitutional public trial rights”]; accord, People v. 

Woodward, supra, at p. 385 [temporary closure of courtroom to new spectators during 

closing arguments did not implicate factors underlying public trial right]; see generally 

Braun v. Powell (7th Cir. 2000) 227 F.3d 908, 919 [concluding permanent exclusion of 

single spectator from trial “on the apparently mistaken belief that such an exclusion 

would enhance, not detract, from the integrity of the proceedings, does not implicate the 

policy concerns that inform the Sixth Amendment’s right to an open trial”].)

We reject defendant’s first contention.

II. Juror Misconduct

Defendant next asserts the verdict must be reversed because there was prejudicial 

juror misconduct. He argues “[o]verwhelming evidence establishes Juror #1 committed 

numerous types of serious misconduct,” and the presumption of prejudice was not 

rebutted. We reject defendant’s contention.

A. Relevant Factual Background

1. Inquiry of Juror No. 1

At the beginning of the third day of trial, outside of the jury’s presence, the court 

reported “a juror contacted my bailiff and stated she was familiar with your witness, 

[prosecutor],” referring to Ramon Perez who was also the named target of the attempted 

murder count charged in count 4. The court stated, according to the juror, Perez is “the 

stepson of her sister, which makes him a stepnephew.” The court told counsel it was 

going to call in the juror “and see if that’s going to affect her ability to deliberate.” 
33.

Neither counsel objected. The following exchange then took place between the court and 

the juror:

“[THE COURT:] {Juror No. [1]}, did you contact my bailiff 

yesterday?

“JUROR NO. [1]: Yes, I did.

“THE COURT: Okay. And it was regarding the—your relationship 

with Ramon–

“JUROR NO. [1]: Perez.

“THE COURT: —Perez?

“JUROR NO. [1]: Yes, ma’am.

“THE COURT: Okay. It’s my understanding that Mr. Ramon Perez 

would be considered your step-nephew sort of?

“JUROR NO. [1]: Kind of, yeah. It’s my sister’s stepson.

“THE COURT: Okay.

“JUROR NO. [1]: Correct.

“THE COURT: All right. So how well do you know Ramon Perez?

“JUROR NO. [1]: I haven’t seen him in over a year and a half. I 

know he has children, and I know his wife just got her LVN and works at a 

school. That’s all I know.

“THE COURT: All right. And before this year and a half, prior to the 

year and a half since you have seen Mr. Perez, did you have a lot of contact 

with him?

“JUROR NO. [1]: No.

“THE COURT: How often would you see Mr. Perez prior to this year 

and a half where you didn’t see him? 

“JUROR NO. [1]: Maybe once.

“THE COURT: One time in—

“JUROR NO. [1]: Yeah.
34.

“THE COURT: In—

“JUROR NO. [1]: I don’t see him at all. I mean—

“THE COURT: Okay. So you recognized him but you don’t really—

“JUROR NO. [1]: Yes.

“THE COURT: It sounds like you don’t really have a relationship 

with him.

“JUROR NO. [1]: I don’t. But when I saw his face yesterday that’s 

why I was concerned—

“THE COURT: Sure.

“JUROR NO. [1]: —and I wanted you to know.

“THE COURT: Well, I appreciate that. You did what you were 

supposed to do.

“So because the—the question is now that we know, would your 

relationship with Mr. Perez affect your ability to be fair and impartial in 

this case?

“JUROR NO. [1]: I believe I can.

“THE COURT: You believe you can? Okay.

“JUROR NO. [1]: Okay.

“THE COURT: Would your relationship with Mr. Perez affect your 

deliberations in any way?

“JUROR NO. [1]: No.

“THE COURT: All right. Have you talked about your relationship 

with Mr. Perez with any of the other jurors?

“JUROR NO. [1]: No.

“THE COURT: Okay. I’m going to ask that you continue not to 

discuss that issue with the other jurors. And I’m going to ask you to go 

back and join the other jurors okay? And I need to talk with the attorneys.”

Juror No. 1 left the courtroom and the court asked counsel for their positions on 

the matter. Defense counsel made a motion to remove Juror No. 1 for cause. The court 
35.

asked if, by doing so, defense counsel was agreeing to move forward with 11 jurors. 

Defense counsel disagreed and asked for a mistrial. The prosecutor argued, “[I]t seems 

like [Juror No. 1] can unequivocally state that she can be fair, this sounds like a very 

distant relative.” He emphasized that Juror No. 1 “was certain that this would not affect 

her in any way.” Defense counsel noted for the record, “[H]ad we known of [Juror No. 

1’s] relationship to a potential witness, ... we certainly would have made a motion at the 

time of voir dire to strike her for cause, and ... if that had been denied, we would have 

used one of our peremptories.”

The court denied defense counsel’s request for a mistrial. The court reasoned, 

“This juror has very little contact with Mr. Ramon Perez, prior to a year and a half ago 

she had one contact with him and recently very little contact, and said that that 

relationship would not affect her ability or would not affect her deliberation, that she 

could be fair and impartial. So the Court will deny the request.”

Later that day, the court recalled Juror No. 1 to ask her about her relationship with 

her sister “to see if it’s a close relationship.” The court noted there are “a lot of cases that 

seem to indicate if there’s a close relationship there may be a problem.” Defense counsel 

noted for the record that Juror No. 1’s relationship related to a witness who was also the 

person named in count 4. The court then asked Juror No. 1 additional questions about her 

relationship to her sister and ability to serve as a fair and impartial juror:

“THE COURT: Do you have a close relationship with [your sister, 

Ramon Perez’s stepmother]?

“JUROR NO. [1]: She recently moved back from New Mexico so I 

have seen her maybe five times in the last four months.

“THE COURT: Okay. Do you consider that to be a close 

relationship?

“JUROR NO. [1]: For me and my sister?

“THE COURT: Sure.

“JUROR NO. [1]: Yeah, we’re close.
36.

“THE COURT: Okay.

“JUROR NO. [1]: Yeah.

“THE COURT: And would your relationship with your sister affect 

your ability to be fair and impartial in this case, realizing that Ramon Perez

is a named victim in this case. Do you understand that?

“JUROR NO. [1]: You want to know if it’s going to affect my 

relationship?

“THE COURT: No, I want to know if it’s going to affect your ability 

in this case to render a verdict—

“JUROR NO. [1]: Definitely not, no.

“THE COURT: Okay. So you actually have interrupted me, which is 

fine—

“JUROR NO. [1]: I’m sorry.

“THE COURT: No, that’s just because it sounds to me like you have a 

strong conviction—

“JUROR NO. [1]: Yes.

“THE COURT: —that you would not let the relationship with your 

sister and your relationship with Ramon Perez impact your decision. 

Correct?

“JUROR NO. [1]: Correct, ma’am.

“THE COURT: In other words, and—if the People have not proved 

their case beyond a reasonable doubt, you would be able to find [defendant] 

not guilty; is that correct?

“JUROR NO. [1]: Correct.

“THE COURT: And if the District Attorney were to prove beyond a 

reasonable doubt the charges, you would be able to convict [defendant]; is

that correct?

“JUROR NO. [1]: Correct, ma’am.

“THE COURT: And, again, there’s nothing about the relationship 

with Mr. Perez, your sister’s stepson—
37.

“JUROR NO. [1]: Stepson.

“THE COURT: —and your sister and that family that would affect 

your ability to be fair and impartial?

“JUROR NO. [1]: Yes.

“THE COURT: Is that correct?

“JUROR NO. [1]: Correct.

“THE COURT: Okay. Thank you, ma’am.”

Defense counsel renewed his motion for a mistrial, stating, “I don’t believe, 

despite her reassurances, that she can be fair given the relationship and given the fact that 

this individual is a named victim in the Information. ...I believe it will be impossible for 

her to be fair despite what she may say.”

The court denied the motion for a mistrial. It stated it would “take [Juror 1]’s 

statement at face value that she can be fair. Not only did she say she can be fair, but she 

is—she seems to have quite a conviction that she can be fair.”

Throughout the trial and before deliberations, the court repeatedly admonished the 

jury that “you are not to talk about the case or about any of the people or any subject 

involved in it with anyone, including the other jurors, and you are not to make up your 

mind about the verdict or any issues until after you have discussed the case with the other 

jurors during deliberations.”

2. Disclosure of Juror Information and Motion for New Trial

After the trial was over, defense counsel moved to continue a subsequent hearing, 

stating “[a]dditional time is needed to prepare and file a motion for a new trial based on 

Juror Misconduct and for motions to be made for release of juror identifying 

information.” (Boldface and underscoring omitted.) The motion explained, “After the 

trial one of the Jurors ... in the Jury trial for [defendant’s] case came forward to report 

that Juror #1 reportedly failed to follow the Judge[’]s order not to discuss the case prior to 

deliberation, and informed other Jurors that she had formed opinions about the evidence[] 
38.

prior to deliberation, and that she did not participate in deliberations with an open mind 

and prejudged the case prior to deliberating.” (Boldface and underscoring omitted.) In 

an attached declaration, defense counsel averred that a juror provided his office with 

information regarding juror misconduct and he needed additional time to properly 

investigate the statements, to file a motion to disclose juror identifying information for 

the remaining jurors, and to prepare a motion for new trial. Defense counsel also filed a 

motion for disclosure of juror identifying information.

The People opposed both motions. In their opposition to the motion for disclosure 

of juror identifying information, the People argued the alleged misconduct “appears to be 

extremely minor, and solely the opinion of one juror.” They asserted the reporting juror 

informed the district attorney’s office’s investigator that the “‘discussion’ before 

deliberation was just a comment by juror #1 ‘He’s stupid, isn’t he?’” and the reporting 

juror “personally believed that juror #1 had already made up her mind.” The People 

attached the investigator’s report to their opposition.

In the report, the investigator recounted his conversation with the reporting juror, 

noting the juror told the defense investigator “Juror #1 was related to one of the witnesses 

and she had said, ‘He’s stupid, isn’t he?’ referring to the defendant.” The reporting juror 

stated he “reached out to the defendant’s family via facebook a couple days after the trial 

because he did not feel the defendant got a 100% fair trial based on the fact one of the 

jurors was related to one of the witnesses.” The juror also reported, “Juror #1 brought up 

the familial relationship during the trial and the Judge decided to keep her on the jury.” 

“When asked if there was anything else that led him to believe the defendant did not get a 

fair trial,” the juror “mentioned Juror #1 talking down about the defendant and he felt she 

had already made up her mind.” The juror “specifically said this was his opinion and not 

based on anything else.”

The court granted defendant’s motion for a continuance and his motion to disclose 

juror identifying information despite the People’s opposition to both. The court 
39.

concluded there was a “sufficient showing to support a reasonable belief that juror 

misconduct has occurred.” Accordingly, the court granted defense counsel’s request and 

set a hearing in accordance with Code of Procedure section 237. The court set a date for 

jurors to object to the disclosure of their information. Approximately two months later, 

the court held a hearing regarding the disclosure of juror identification information. The 

court noted it had received seven responses objecting to the release of information. The 

court ordered the release of identifying information for the remaining jurors.

3. Motion for New Trial Proceedings

Defendant filed a motion for new trial based, in part, on alleged juror misconduct, 

attaching the district attorney investigator’s report regarding his conversation with the 

reporting juror. The People opposed the motion. The People attached to their opposition 

a report from the district attorney investigator, who contacted the jurors whose contact 

information was provided, and a declaration from the prosecutor that the investigator 

provided the report regarding his conversations with the jurors whose contact information 

was disclosed. According to the report, three jurors agreed to speak to the investigator, 

and all denied witnessing any inappropriate behavior by any other juror that suggested 

defendant did not receive a fair trial. The record does not reflect defendant objected to 

the trial court’s consideration of the investigator’s report.

The court then held a joint hearing on defendant’s motion for new trial and 

explained that the motion was based on alleged juror misconduct. Specifically, there was 

an allegation by Juror No. 9 that defendant did not get a fair trial based on Juror No. 1’s 

comment that defendant was stupid. Juror No. 9 “felt that [Juror No. 1] had already made 

up her mind.” The court noted, both sides investigated the issue, and “this allegation was 

not corroborated by any other jurors that were interviewed.”

The court denied the motion for new trial explaining its reasoning:

“The facts that the Court is relying on in making this ruling consists 

of the declarations and the investigation attached to the motions. For the 

purpose of the motion the Court will assume that [Juror No. 1] did in fact 
40.

make that statement. However, it is unclear when that statement was made, 

either predeliberation or during deliberation. The allegation that [Juror 

No. 1] did not participate in deliberation with an open mind is not 

supported by the evidence. Any statement by [Juror No. 9] regarding this 

issue consists of his feelings and speculation and his opinion, and is not 

admissible.

“Further when questioned [Juror No. 1] stated she could be fair, and 

in fact acquitted the defendant on the attempted murder regarding the 

witness that she had a relationship with. The Court does find that there is 

insufficient evidence to conclude that there are [sic] juror misconduct.

“Assuming for the sake of argument that the juror made the 

statement predeliberation, which could be construed as misconduct for 

failing to follow the Court’s order not to discuss the case prior to 

deliberation, prejudice would then be presumed. This presumption is 

rebutted by sufficient evidence of the defendant’s guilt as follows:

“The recorded statement made by the defendant, photograph of the 

defendant holding the murder weapon, the defendant wearing the same 

clothes when arrested. The defendant was identified in court as the shooter 

by other witnesses.. And most importantly the defendant took the stand and 

admitted he was the shooter. These facts negate any presumption of 

prejudice, and therefore the motion for new trial is denied.”

Before sentencing, the defense filed a motion for reconsideration of the motion for 

new trial. Defense counsel explained to the court that “it is basically the same motion”; 

however, it includes a sworn declaration of Juror No. 9 under penalty of perjury. The 

motion also included an attached declaration by defense counsel in which he stated, at the

hearing on the motion for new trial, he “had a witness that was available to testify 

regarding juror misconduct” but, before the hearing, the presiding judge “indicated that 

she did not wish to question the witness because the substance of his testimony had been 

thoroughly covered in the moving papers by both the Defense and the Prosecution.” He 

asserted, because the witness’s statements were not admitted as evidence at trial or in an 

affidavit, they were not part of the record. Accordingly, he averred, the affidavit from the 

juror attached to the motion for reconsideration provided new factual information 

necessary to preserve the record and to provide grounds for a new trial. The court denied 

the motion for reconsideration.
41.

B. Standard of Review and Applicable Law

“We review independently the trial court’s denial of a new trial motion based on 

alleged juror misconduct. [Citation.] However, we will ‘“accept the trial court’s 

credibility determinations and findings on questions of historical fact if supported by 

substantial evidence.”’” (People v. Gamache (2010) 48 Cal.4th 347, 396.) “Under 

California law, if a juror’s partiality would have constituted grounds for a challenge for 

cause during jury selection, or for discharge during trial, but the juror’s concealment of 

such a state of mind is not discovered until after trial and verdict, the juror’s actual bias 

constitutes misconduct that warrants a new trial under ... section 1181, subdivision 3.

[Citations.]” (People v. Nesler (1997) 16 Cal.4th 561, 581.)

Jurors may not “converse among themselves ... on any subject connected with the 

trial” or “form or express any opinion about the case until the cause is finally submitted 

to them.” (§ 1122, subds. (a)(1), (b).) A violation of the court’s instructions constitutes 

misconduct. (See People v. Lavender (2014) 60 Cal.4th 679, 687.) “‘“Misconduct by a 

juror ... usually raises a rebuttable ‘presumption’ of prejudice.”’” (People v. Loker

(2008) 44 Cal.4th 691, 746–747.) “[W]e determine whether an individual verdict must 

be reversed for jury misconduct by applying a substantial likelihood test. That is, the 

‘presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire 

record in the particular case, including the nature of the misconduct or other event, and 

the surrounding circumstances, indicates there is no reasonable probability of prejudice, 

i.e., no substantial likelihood that one or more jurors were actually biased against the 

defendant.’” (In re Boyette (2013) 56 Cal.4th 866, 889–890.)

“‘Whether prejudice arose from juror misconduct ... is a mixed question of law 

and fact subject to an appellate court’s independent determination.’ ... However, ‘[w]e 

accept the trial court’s credibility determinations and findings on questions of historical 

fact if supported by substantial evidence.’” (People v. Danks (2004) 32 Cal.4th 269, 

303–304; accord, People v. Lavender, supra, 60 Cal.4th at p. 687 [we review 
42.

“independently the question whether prejudice from juror misconduct has been 

rebutted”]; People v. Leonard (2007) 40 Cal.4th 1370, 1425 [similar].)

C. Analysis

Defendant contends the court “did not correctly analyze the issues related to Juror 

#1’s misconduct nor did it apply the correct standard when it found the presumption of 

prejudice had been rebutted.” He asserts the court correctly found Juror No. 1 committed 

misconduct by discussing the case or parties prior to deliberations in saying, “‘He’s 

stupid isn’t he,’” referring to defendant, and that prejudice was presumed. However, he 

argues, in denying his motion for new trial, the court failed to address or “consider ... 

that Juror #1’s statement itself also constituted misconduct” because it evinced that Juror 

No. 1 had an “actual bias and antipathy” toward defendant. He asserts Juror No. 1’s 

comment reflects she had prejudged the case prior to deliberations. Defendant also 

alleges Juror No. 1 committed misconduct by revealing her relationship to Ramon Perez, 

directly contrary to the court’s order. Relatedly, defendant contends Juror No. 1 “should 

not have been allowed to remain on the jury given her close relationship with her sister, 

Perez’s step-mother.” He argues the court “manifestly applied the wrong test of 

prejudice” in concluding the presumption of prejudice had been rebutted. He contends 

the court erred in considering the strength of the evidence of defendant’s guilt and the 

jury’s acquittal of defendant of count 4 in concluding the presumption of prejudice was 

rebutted. He further asserts “[d]enial of the right to an unbiased jury is structural error.”

The People respond, in part, that we should accept the trial court’s factual finding 

that there was no showing of misconduct. They assert the evidence presented in favor of 

defendant’s initial motion for new trial was “limited to a statement filtered through two 

layers of hearsay: Defense counsel heard from Juror 9 that Juror 9 heard Juror 1 say 

something inappropriate at some point in time.” They concede the prosecution presented 

a similar report based on multiple layers of hearsay and note, by the time of the actual 

hearing on the motion, “the prosecution presented a supplemental narrative based on 
43.

interviews with three jurors who said that they heard nothing inappropriate.” They argue, 

the court found no misconduct had occurred and the court was within its “discretion to 

reject hearsay in making its factual findings, especially when three other jurors made 

statements contrary to the ones made by Juror 9.” As to the motion for reconsideration, 

the People assert the evidence was not credited by the fact finder, and we should defer to 

that determination. Alternatively, they assert the alleged instance of misconduct 

regarding Juror No. 1’s statement was not inherently indicative of bias that would 

substantially influence Juror No. 1, nor did it give rise to a substantial likelihood of actual 

bias. Finally, they argue, even if the “trial court incorrectly pointed to the strength of the 

evidence as a factor that rendered any error nonprejudicial,” reversal is not required 

because the trial court’s decision was correct, though the reason stated was wrong. For 

the reasons that follow, we reject defendant’s contention that the verdict must be reversed 

based upon prejudicial juror misconduct.

Here, there were two alleged instances of misconduct: (1) a statement made by 

Juror No. 1 referring to defendant as “stupid,” and (2) Juror No. 1’s alleged disclosure of 

her connection to Perez, a witness and named victim in count 4.

4

 The parties dispute 

whether the trial court found the alleged conduct to have actually occurred.

Contrary to the parties’ contentions, the record before us does not reflect the court 

made a factual finding as to whether the alleged instances of misconduct were true. 

Rather, the court, stated, “For the purpose of the motion the Court will assume that [Juror 

No. 1] did in fact make that statement [referring to defendant as ‘stupid’]. However, it is 

4On appeal, both parties point out, but do not directly challenge, the opposing party’s 

reliance—both, in support of the motion for new trial and the opposition thereto—upon evidence 

comprising hearsay—namely, Investigator Jason Bietz’s unsworn reports discussing his 

investigation into the alleged misconduct. Notably, neither party objected to the admission or 

consideration of the reports below, and the court discusses the information in the reports in 

assessing both the claim of juror misconduct and response thereto. Accordingly, to the extent the 

parties’ discussion of such evidence on appeal could be construed as a challenge to its 

admissibility, we conclude any claim of error regarding the trial court’s improper use of such 

evidence is forfeited. (See Evid. Code § 353, subd. (a).)
44.

unclear when that statement was made, either predeliberation or during deliberation.” 

(Italics added.) Assuming, as the trial court did, arguendo, that Juror No. 1 made the 

comment that defendant was “stupid,” we further agree with the trial court that, if such a 

statement was made prior to deliberations, it was in violation of the court’s order that no 

juror should express any opinion on any subject connected with the trial until the matter 

was finally submitted to the jury and, thus, misconduct. (See People v. Sandoval (2015) 

62 Cal.4th 394, 437 [comments violating trial court’s instruction not to discuss case 

before deliberations constitute misconduct]; see also § 1122].)

However, after conducting an independent review of the record, based upon the 

nature of the alleged misconduct, we conclude the presumption of prejudice has been 

rebutted because there is no substantial likelihood that Juror No. 1, or any other juror, 

was actually biased against defendant. (See In re Boyette, supra, 56 Cal.4th at p. 890.) 

Accordingly, even if the trial court erred in considering the strength of the evidence 

inculpating defendant in weighing whether the presumption of prejudice was rebutted, the 

alleged juror misconduct does not require reversal. (See In re Carpenter (1995) 9 Cal.4th 

634, 654 [noting “the test for determining whether juror misconduct likely resulted in 

actual bias is ‘different from, and indeed less tolerant than,’ normal harmless error 

analysis, for if it appears substantially likely that a juror is actually biased, we must set 

aside the verdict, no matter how convinced we might be that an unbiased jury would have 

reached the same verdict”].)

In so concluding, we disagree with defendant’s contention the alleged statement 

by Juror No. 1 in which she referred to defendant as “stupid,” in and of itself, evinced a 

substantial likelihood that Juror No. 1 was “actually biased” against defendant. “What 

constitutes ‘actual bias’ of a juror varies according to the circumstances of the case.”

(People v. Nesler, supra, 16 Cal.4th at p. 580.) “[A]ctual bias supporting an attack on the 

verdict is similar to actual bias warranting a juror’s disqualification.” (Id. at p. 581.) 

“Either party may challenge an individual juror for ‘an actual bias.’ (Code Civ. Proc., 
45.

§ 227, subd. (d).) ‘Actual bias’ in this context is defined as ‘the existence of a state of 

mind on the part of the juror in reference to the case, or to any of the parties, which will 

prevent the juror from acting with entire impartiality, and without prejudice to the 

substantial rights of the any party.’” (People v. Nesler, at p. 580.)

Here, no evidence was given as to when the alleged remark was made during trial 

or in what context. And we cannot conclude this single stray remark establishes Juror 

No. 1 prejudged the case or was predisposed to convict defendant regardless of the 

evidence presented. Rather, the alleged statement in and of itself does not establish Juror 

No. 1 was actually biased, nor was it a clear opinion of guilt before all of the evidence 

was presented. It would be sheer speculation for us to conclude the alleged statement 

established a substantial likelihood that Juror No. 1 was actually biased against 

defendant. There was also no evidence any other juror was influenced by the alleged 

statement. On this record, we conclude the presumption of prejudice was rebutted under 

the circumstances; that is, there is no substantial likelihood that one or more jurors were 

actually biased against defendant. (See People v. Sandoval, supra, 62 Cal.4th at p. 437 

[presumption of prejudice was rebutted where alternate juror’s predeliberation statement, 

expressing disbelief jury appeared split, was brief and isolated, only heard by one other 

juror, and was not repeated]; see generally People v. Avila (2006) 38 Cal.4th 491, 605 

[assuming juror made statements “disparaging defense counsel, the trial court, and the 

criminal justice system, in violation of the court’s admonition not to discuss any subject 

connected with the trial,” whether statements were made “was not a material issue in the 

case” because they “had no bearing on the matter pending before the jury, that is 

defendant’s guilt or innocence”]; People v. Allen and Johnson (2011) 53 Cal.4th 60, 73

[juror’s statement during deliberations that “‘[w]hen the prosecution rested, she didn’t 

have a case,’” was subject to interpretation; it was not an “‘unadorned statement’” that 

juror had conclusively prejudged the case or that established he had ignored further 

evidence, argument, instructions, or the views of other jurors].)
46.

People v. Weatherton (2014) 59 Cal.4th 589, on which defendant relies, is 

distinguishable. In Weatherton, a juror repeatedly discussed the case with fellow jurors 

prior to deliberations, conveying to them his belief that the defendant was guilty, and 

advocating for a verdict of guilt long before the prosecution had finished its presentation 

of evidence and the defense had an opportunity to call that evidence into question. (Id. at 

pp. 596–600.) As early as the first day of trial, the juror indicated to other jurors that 

“‘there was no denying’” a prosecution witness’s testimony, and that he believed her 

testimony was dispositive on guilt. (Id. at pp. 596, 599–600.) Both before and during 

deliberations, the juror expressed the view that the defendant deserved the death penalty, 

further suggesting he had made up his mind regarding the defendant’s guilt. (Id. at pp.

593, 599–600.) “Given the nature, scope, and frequency” of the juror’s misconduct, the 

Weatherton court concluded the People had not rebutted the presumption of prejudice and 

reversal was required. (Id. at p. 600.) In so holding, the court noted “‘we must set aside 

the verdict, no matter how convinced we might be that an unbiased jury would have 

reached the same verdict, because a biased adjudicator is one of the few structural trial 

defects that compel reversal without application of a harmless error standard.

[Citation.]’” (Ibid.)

The alleged misconduct here is distinguishable from the substantial evidence of 

rampant misconduct present in Weatherton. The alleged misconduct in this case was 

neither prolonged nor repeated. As discussed, there is no evidence as to the context in 

which the alleged single stray remark by Juror No. 1 was made. And the statement, on its 

own, does not establish Juror No. 1 prejudged the case or that any other jurors evinced 

actual bias against defendant. Accordingly, Weatherton is inapposite. (See People v. 

Merriman (2014) 60 Cal.4th 1, 101 [juror’s statement to deputy predicting death would 

be imposed while case was pending did not show substantial likelihood any juror was 

actually biased against defendant; concluding “the evidence of prejudgment in the present 
47.

matter is far different from, and significantly less than, the circumstances that required 

reversal of the judgment for juror misconduct in People v. Weatherton”].)

Defendant further contends it was misconduct for Juror No. 1 to reveal her 

relationship to Perez to other jurors. First, we note, even if we were to assume Juror 

No. 1 did in fact tell the other jurors about the nature of her relationship to Perez, there is 

no evidence in the record as to when this occurred—before deliberations, during 

deliberations, or after deliberations. Accordingly, there is no evidence Juror No. 1 was 

trying to influence the other jurors’ opinions about any issue in the case “or that the 

information was of the kind that was likely to exert such an influence.” (In re Bolden

(2009) 46 Cal.4th 216, 228.) Thus, we cannot conclude Juror No. 1’s alleged disclosure 

of her relationship to Perez was prejudicial juror misconduct, nor did it establish Juror 

No. 1 was biased against defendant. (See ibid. [juror’s disclosure to fellow juror 

regarding relationship to defendant’s roommate was not prejudicial misconduct].)

And we defer to the trial court’s factual finding that Juror No. 1 could be fair and 

impartial despite her relationship to Perez, which we conclude is supported by substantial 

evidence. Juror No. 1 explained she had no relationship with Perez; she had not seen him 

in a year and a half and had probably only seen him once before that; and she repeatedly 

asserted, unequivocally, that she could fairly and impartially serve as a juror 

notwithstanding her relationship with her sister and connection to Perez. (Cf. People v. 

Romero (2017) 14 Cal.App.5th 774, 781–782 [court erred in allowing juror to remain on 

panel where juror had been victim’s teacher three years prior, “apparently had frequent 

personal interaction with the victim,” “admitted a favorable impression of the victim,”

and juror stated she did not “think” her favorable relationship with victim would affect 

how she perceived evidence and participated in deliberations].) Accordingly, we accept 

the trial court’s credibility determination regarding Juror No. 1’s assertion she believed 

she could be fair and impartial. (See generally People v. Zaragoza (2016) 1 Cal.5th 21, 

59 [“The trial court, which was able to observe the juror’s tone and demeanor, conducted 
48.

an inquiry adequate to determine that Juror No. 8 could be impartial and would be 

unaffected by the coincidence that the victim’s brother, who was not a witness in the 

case, worked at the juror’s place of employment”].) And we conclude the juror’s 

responses to the court’s inquiry into her relationship to Perez and her affirmation that the 

relationship would not affect the juror’s deliberations, further rebuts any potential issue 

of juror bias or misconduct.

For all these reasons, we reject defendant’s contention there was prejudicial juror 

misconduct and that the court erred in denying defendant’s motion for new trial on that 

basis.

III. Judicial Notice of Preliminary Hearing Testimony

Defendant next argues the trial court prejudicially erred in taking judicial notice of 

an excerpt of Christian’s testimony from the preliminary hearing. We reject defendant’s 

contention.

A. Relevant Factual Background

At trial, the following exchange took place with defendant’s brother, Christian, 

regarding whether he saw any of the four men from the liquor store with a gun at 

Corcoran and Lassen:

“Q. Do you remember telling the Court that you didn’t see any of 

the men at Corcoran and Lassen, the four men from the liquor store, you 

didn’t see any of them with a gun?

“A. I don’t remember. I don’t remember.

“Q. Did you see any of the men at Corcoran and Lassen from the 

liquor store with any kind of a weapon?

“A. Yes.

“Q. Okay. But you testified that you did not?

“A. Well, I don’t remember, I don’t know.

“[PROSECUTOR]: Okay. I’m going to ask to approach the witness.
49.

“THE COURT: Go ahead.

“[DEFENSE COUNSEL]: May I—

“[PROSECUTOR]: For the record, I’m looking at page 31 of the 

preliminary hearing transcript.

“Q. Now I’m going to ask you to read this silently while I read this 

aloud to you.

“My question was ‘Did you see anyone at Corcoran and Lassen with 

a gun?’ Your response was ‘no.’

“Was that your testimony?

“A. Yes, it says on the paper. I don’t remember. But on the paper it 

says, yes, I said ‘no.’”

Later that day, the prosecutor asked the court to take judicial notice of the question 

and answer from Christian’s preliminary hearing testimony:

“[PROSECUTOR]: I have never asked this specifically, and if I’m not 

allowed to do this then please tell me no.

“But there was a question from the preliminary hearing that was 

inconsistent—the answer was inconsistent with something he said in court. 

Would the Court allow me just to take judicial notice of one question and 

one answer from Christian Martinez’s—as a prior testimony?

“THE COURT: What was the question and what was the answer?

“[PROSECUTOR]: I said ‘Did you see anyone at Corcoran and Lassen 

with a gun?’ And he answered ‘no.’

“I believe that he gave a lot of I don’t knows or there might have 

been a gun, so I just think it would clarify, and it’s just that one question 

and answer.

“THE COURT: Are you saying that he—he testified today that 

somebody had a gun?

“[PROSECUTOR]: He was kind of all over the place.

“THE COURT: No, I understand. But—

“[PROSECUTOR]: I thought he had said at various times that he 

thought they had a gun.
50.

“THE COURT: Well, thinking they have a gun and seeing a gun are 

different.

“[PROSECUTOR]: Right. This answer is so unequivocal, it seems to 

me that it would not take up much of the Court’s time, and it would resolve 

the issue—

“THE COURT: Well, it doesn’t matter—well I understand that it’s 

not going to take time. I’m just trying to determine if it’s an inconsistent 

statement.

“[PROSECUTOR]: Would the Court like me to direct the Court to the 

passage of the prelim or give the Court my transcript?

“THE COURT: I would like to see it. Have you shown it to Mr.—

“[DEFENSE COUNSEL]: I have seen it, your Honor. I’m familiar 

with what—

“THE COURT: Okay. Let me take a look at it.

“And you are saying that he testified to that?

“[PROSECUTOR]: That is from the preliminary hearing transcript in 

this case. And what he said in this trial, I believe, was—was a lot of I don’t 

know and speculation about whether they did or did not have a gun.”

The court stated it needed “to review the transcripts of his testimony to see if it’s 

inconsistent.” Defense counsel objected to the prosecutor reading into the record the

referenced passage of the transcript of the preliminary hearing.

The court overruled the objection and held, “[i]t seems to be proper 

impeachment.” Accordingly, the court permitted the prosecutor to read the following 

passage from Christian’s preliminary hearing testimony into the record:

“‘Q. But at Corcoran and Lassen did you see the gun?’

“Christian Martinez: [¶] ‘A. No.’

“‘Q. Okay. Because none of the men had a gun there?’

“‘A. (Nods affirmatively.)’

“‘Q. Is that correct?’ [¶] ... [¶]
51.

“‘Q. I’m asking him did anyone at the Corcoran and Lassen have a 

gun?’

“The Court then says: 

“‘Did you see? He doesn’t know whether they actually had one or 

not.’

“And then [the prosecutor] said:

“‘Q. Did you see anyone at Corcoran and Lassen with a gun?’

“Christian Martinez: [¶] ‘A. No.’”

In closing argument, the prosecutor stated, in part, “We heard that even as far back 

as the preliminary hearing, Christian Martinez came to court and said there was no gun, 

there was no gun at Corcoran and Lassen. We heard that the Court took judicial notice of 

that.”

B. Standard of Review and Applicable Law

“‘Judicial notice is the recognition and acceptance by the court, for use by the trier 

of fact or by the court, of the existence of a matter of law or fact that is relevant to an 

issue in the action without requiring formal proof of the matter.’” (Lockley v. Law Office 

of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) Evidence 

Code section 452, subdivision (d) provides, in relevant part, that judicial notice may be 

taken of the records of “any court of this state.”

C. Analysis

Defendant challenges the court’s decision to take judicial notice of Christian’s 

referenced testimony from the preliminary hearing, asserting “by taking judicial notice of 

a disputed fact of consequence to the action, the court directed a verdict against 

[defendant] on a significant element, violating his rights to due process, fundamental 

fairness, a jury trial and the presumption of innocence.” He contends the prosecutor’s 

reliance on this “judicially-endorsed fact” to argue the jury should reject defendant’s plea 

of self-defense lightened the prosecution’s burden of proof. We disagree.
52.

Here, the court’s action of taking judicial notice of Christian’s prior inconsistent 

statement from his preliminary hearing testimony to establish its existence rather than its 

truth was proper,

5 and doing so did not establish the truth of Christian’s prior statement. 

(See People v. Jennings (2010) 50 Cal.4th 616, 684, fn. 34 [noting, even if court “could 

take judicial notice of the existence, content, and authenticity of ... secondary materials, 

doing so would not establish the truth of critical factual matters asserted therein”]; 

accord, People v. Castillo (2010) 49 Cal.4th 145, 157 [“Although we could take judicial 

notice of the existence, content, and authenticity of such letters, doing so would not 

establish the truth of critical factual matters asserted in those documents” (fn. omitted)]; 

see also Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063–1064 

[“‘[T]he taking of judicial notice of the official acts of a governmental entity does not in 

and of itself require acceptance of the truth of factual matters which might be deduced 

therefrom, since in many instances what is being noticed, and thereby established, is no 

more than the existence of such acts and not, without supporting evidence, what might 

factually be associated with or flow therefrom’”], overruled on other grounds by In re 

Tobacco Cases II (2007) 41 Cal.4th 1257, 1262.) Notably, the prosecutor did not ask the 

court to take judicial notice of the referenced exchange from the preliminary hearing 

transcript for the purpose of establishing the truth of the statements made therein. And 

the court did not state, nor was the jury instructed, that the court’s decision to take 

judicial notice of such testimony established the truth of the disputed factual matter 

discussed therein.

And, contrary to defendant’s contention, the prosecutor did not assert the disputed 

fact was resolved by the court’s taking of judicial notice of Christian’s prior inconsistent 

5See People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 766–767 [“A 

witness’s out-of-court statement ‘is not made inadmissible by the hearsay rule if the statement is 

inconsistent with his testimony at the hearing and is offered in compliance with [Evidence Code] 

Section 770’”]; accord, Evid. Code, § 1235; see also Evid.Code, § 452, subd. (d) [court may 

take judicial notice of a court record].)
53.

testimony. Indeed, when questioning defendant on cross-examination, the prosecutor 

noted Christian testified previously that he did not see anyone at Corcoran and Lassen 

with a gun, but then Christian testified in court that he saw someone with a chrome gun 

before the shooting. Accordingly, the prosecutor did not insinuate or tell the jury this 

disputed fact was resolved by the court’s taking of judicial notice of the preliminary 

hearing testimony but rather highlighted the inconsistency in Christian’s statements. 

Thus, we cannot conclude the court’s taking judicial notice of the existence of such 

testimony amounted to it resolving a disputed fact and lightening the prosecution’s 

burden of proof. Rather, nothing in the record establishes the court erred in taking 

judicial notice of this testimony.

IV. Denial of Motion for Continuance

Defendant next asserts the court prejudicially erred in refusing to grant him a 

continuance to secure the attendance of the doctor who evaluated him during the 

competency proceedings before trial. We disagree.

A. Relevant Procedural Background

On August 8, 2018, defense counsel filed a motion to continue the trial to permit 

the defense to call Dr. Luis H. Velosa, who was out of the country until September 17, 

2018. In an attached declaration, defense counsel averred that Dr. Velosa was “a 

necessary and material witness for potential defenses as well as providing mitigating facts 

should the Defendant ultimately be found guilty.” He stated he served a subpoena on 

Dr. Velosa to testify at trial on August 6, 2018, but Dr. Velosa’s office informed him 

Dr. Velosa was out of the country until September 17, 2018. He attached a letter from 

Dr. Velosa’s office clerk stating Dr. Velosa “will not be available for court appointed 

evaluations from June 15, 2018 to September 17, 2018. He will be out of the Country 

during this time.”
54.

The court held a hearing on the motion at which the prosecutor orally opposed the 

motion.6 The prosecutor argued Dr. Velosa was not relevant or material to the matter as 

he “is an expert who only evaluated the defendant for competency, and he found the 

defendant competent.” The prosecutor asserted the motion seemed “to be a tactic to try 

to continue the case.”

Defense counsel responded that his office subpoenaed Dr. Velosa and believed 

“his testimony would be relevant in the context that [Dr. Velosa] interviewed [defendant] 

as part of a competency evaluation ... [and] while he did find [defendant] competent to 

stand trial, he found ... [defendant] has developmental issues and other issued [sic] such 

as ADHD.” Defense counsel stated he sought to call Dr. Velosa as a witness regarding 

defendant’s “ability to form the mental—” The court then asked if defense counsel had 

spoken to the doctor. Defense counsel responded he had Dr. Velosa’s report from the 

mental competency hearing and his “statement” and had tried to subpoena him, but the 

subpoena could not be delivered.

The court denied the motion to continue, concluding there was “an exceedingly 

weak showing” of good cause that was “[c]ertainly not sufficient to warrant continuing

the trial.” The court stated, “The analysis [Dr. Velosa] was doing was directed toward 

trial competence, which is a very narrow and specific determination. His charge from 

this Court was not to do a full blown psychiatric workup on the defendant, and there is no 

evidence that he did such a workup.” The court further noted there was no effort to 

subpoena Dr. Velosa until August 6th, though the trial had been set for months.

After the court denied the motion, the parties confirmed they were ready to 

proceed with trial. Trial began the following Monday.

6The hearing was held on Friday, August 17, 2018 and defendant’s jury trial began the 

following Monday, August 20, 2018.
55.

B. Standard of Review and Applicable Law

A continuance may only be granted for good cause, and trial courts have broad 

discretion to determine whether good cause exists. (§ 1050, subd. (e); People v. 

Alexander (2010) 49 Cal.4th 846, 934.) “When a continuance is sought to secure the 

attendance of a witness, the defendant must establish ‘he had exercised due diligence to 

secure the witness’s attendance, that the witness’s expected testimony was material and 

not cumulative, that the testimony could be obtained within a reasonable time, and that 

the facts to which the witness would testify could not otherwise be proven.’” (People v. 

Jenkins (2000) 22 Cal.4th 900, 1037; accord, People v. Wilson (2005) 36 Cal.4th 309, 

352.) “The court considers “‘not only the benefit which the moving party anticipates but 

also the likelihood that such benefit will result, the burden on other witnesses, jurors and 

the court and, above all, whether substantial justice will be accomplished or defeated by a 

granting of the motion.”’” (Jenkins, at p. 1037.)

We review an order denying a motion to continue for an abuse of discretion. 

(People v. Mungia (2008) 44 Cal.4th 1101, 1118.) The party challenging a ruling on a 

continuance bears the burden of establishing an abuse of that discretion. (People v. 

Beames (2007) 40 Cal.4th 907, 920; People v. Strozier (1993) 20 Cal.App.4th 55, 60;

People v. Jeffers (1987) 188 Cal.App.3d 840, 850.) “Under this state law standard, 

discretion is abused only when the court exceeds the bounds of reason, all circumstances 

being considered.” (People v. Beames, supra, at p. 920.) In determining whether the 

denial was so arbitrary as to violate due process, we look to the circumstances of each 

case, particularly the reasons presented to the court at the time the request was denied. 

(People v. Courts (1985) 37 Cal.3d 784, 791; Jeffers, supra, at p. 850.)

C. Analysis

Defendant asserts all of the circumstances were present to establish good cause to 

procure the presence of Dr. Velosa. He asserts defense counsel reasonably subpoenaed 

Dr. Velosa 17 days before trial, and the court erred in focusing on when the subpoena 

was served. Defendant contends, regardless, Dr. Velosa was unavailable and “his 
56.

unavailability was not counsel’s fault.” He contends Dr. Velosa’s testimony regarding 

defendant’s “mental condition” would “aid the jury in deciding whether [defendant] 

actually formed the mental state(s) required to commit the charged crimes.” He also 

argues such testimony was “important to sentencing” because the sentencing court was 

entitled to consider the “‘“mitigating qualities of youth.”’”

We cannot conclude the trial court abused its broad discretion in denying 

defendant’s motion for a continuance. Here, defendant failed to establish the materiality 

of Dr. Velosa’s testimony or provide an offer of proof as to what exculpatory testimony 

he might offer. Put differently, the defense did not explain what facts Dr. Velosa would 

testify to that were “necessary” and “material” to the defense. Rather, counsel simply 

made conclusory statements that the anticipated testimony was “material” and 

“necessary.” But, as the court noted, Dr. Velosa conducted a limited evaluation of 

defendant’s competence to stand trial. The critical focus of a competency inquiry is upon 

defendant’s present capacity to understand the nature of the criminal proceedings and 

rationally assist counsel in the conduct of a defense, not his past mental state associated 

with the commission of the offense. (See People v. Hayes (1999) 21 Cal.4th 1211, 1281.)

While in his brief defendant states Dr. Velosa’s report “provides insight into what he 

would have testified to at trial,” as discussed, Dr. Velosa’s report related to defendant’s 

competency to stand trial. Defendant’s contention that “Dr. Velosa would have testified 

as to how [defendant]’s diagnosed conditions may have affected his mental state” on the 

date of the offense is speculative and not grounded in any basis in the record. (See In re 

Ernesto H. (2004) 125 Cal.App.4th 298, 316 [“A continuance may properly be denied 

when the request is based on allegedly new evidence of speculative value”].) Rather, on 

the record before us, we cannot conclude defendant has met his burden of establishing the 

court abused its discretion in concluding Dr. Velosa’s anticipated testimony would be of 

limited apparent utility and, thus, defendant did not establish good cause for a 

continuance. (See People v. Reed (2018) 4 Cal.5th 989, 1005 [court did not abuse its 
57.

discretion in denying request for continuance to procure witness’s attendance where 

continuance would have been of “limited apparent utility”]; accord, People v. Riggs

(2008) 44 Cal.4th 248, 297 [court did not abuse its discretion in denying request for 

continuance to secure attendance of three witnesses whose “testimony was immaterial, as 

it was speculative at best”]; see also People v. Jenkins, supra, 22 Cal.4th at p. 1038 

[“court was within its discretion in refusing to grant a continuance, because defendant 

had not demonstrated that a continuance would be useful in producing specific relevant 

mitigating evidence within a reasonable time”]; People v. Beeler (1995) 9 Cal.4th 953, 

1003–1004 [continuance properly denied when defendant’s request was based upon new 

evidence of speculative value], abrogated on another ground as stated in People v. 

Edwards (2013) 57 Cal.4th 658, 704–705.) And, for the same reasons, we cannot 

conclude defendant has established a reasonable probability he would have obtained a 

more favorable verdict had the continuance been granted. (People v. Panah (2005) 35 

Cal.4th 395, 423 [“‘In the absence of a showing of an abuse of discretion and prejudice to 

the defendant, a denial of a motion for a continuance does not require reversal of a 

conviction’”].)

In addition, though defendant argues Dr. Velosa was available to testify in 

September, the evidence before the court did not establish a finite date as to Dr. Velosa’s 

expected availability to appear at defendant’s trial. Rather, defense counsel merely 

presented the court with information regarding when Dr. Velosa would return to the 

country, rather than a specific date when Dr. Velosa would be available to testify. 

Defense counsel also did not represent he had spoken to Dr. Velosa.

Defendant’s reliance on People v. Shane (2004) 115 Cal.App.4th 196 is 

misplaced. In Shane, the court held the trial court did not abuse its discretion in granting

the prosecution a continuance after they attempted to serve a key witness—the arresting 

officer in a misdemeanor case alleging traffic violations, including driving under the 

influence of alcohol—four days before the initial trial date and learned he was 
58.

unavailable. (Id. at pp. 203–205.) In so holding, the Shane court rejected the defendant’s 

proposed rule that the prosecution should be required to serve a subpoena on a peace 

officer who is a material witness as soon as the trial date is set to show good cause for a 

continuance based on the officer’s unavailability. (Id. at p. 204.) The court held, 

“because a finding of good cause is by its nature fact intensive, it would be entirely 

arbitrary for us to require as a matter of law that a witness’s availability be determined no 

later than a fixed number of days before the trial date for good cause to be shown.” (Id.

at p. 205.)

Here, the court concluded defendant had not established good cause for a 

continuance based primarily on an insufficient showing by defendant of the materiality of 

Dr. Velosa’s testimony, which was not at issue in Shane where the missing witness was a 

key witness—the arresting officer in a case in which the defendant was charged, in part, 

with driving under the influence of alcohol. As discussed, we cannot conclude the court 

abused its discretion in denying the requested continuance on that basis. Furthermore, 

the consideration of whether due diligence was exercised is fact-specific. This was a 

murder occurring in August 2016 and had been pending for approximately two years. 

There were multiple witnesses and, aside from this request to procure Dr. Velosa’s 

attendance, the parties otherwise announced they were ready to proceed with trial. Given 

the particular circumstances of this case, we cannot conclude the court erred in 

concluding substantial justice would not be served by granting a continuance. (See 

People v. Beames, supra, 40 Cal.4th at pp. 920–921 [“an order denying a continuance is 

seldom successfully attacked”; “discretion is abused only when the court exceeds the 

bounds of reason, all circumstances being considered”].)

V. Admission of Rap Video into Evidence

Defendant next argues the court abused its discretion in admitting at trial a video 

recording of him rapping.
59.

A. Relevant Factual Background

Gang expert Officer Segura testified rap music is part of gang culture. He 

explained, “within the gang subculture, depending what gang it is, there is [sic] Hispanic 

gangs, black gangs, there’s numerous types of gangs, along with the clothing and colors 

and symbols they use to represent the gang, there is also music, which each gang uses to 

either challenge rival gang members or to tell even the general public personal war stories 

or just ideas and philosophy of the gang life.”

Officer Segura testified he found on the cellular phone recovered from the Chevy 

Malibu numerous rap videos and audio recordings of defendant rapping. Segura 

explained, “there’s a lot of content in each rap or song. The content of the songs is 

‘staying strapped’ for lack of better ... words, he’s ... always armed. He talks about 

disrespecting chaps, which is a slang term to disrespect the Norteno gang members. He 

talks about some of his homies or comrades, friends who are also part of the gang. And 

he also talks a little bit about some experiences that he may or may not have experienced 

in his life in those songs.”

The prosecution introduced a recording from the cellular phone seized during the 

investigation. Defense counsel objected to the recording “as to foundation and also 

cumulative and undue consumption of time.” The prosecutor advised the court the 

recording was a little over a minute long and the court reviewed a transcript of the 

recording. The court asked the prosecutor if he knew when it was “actually recorded in 

relation to the events in this case.” The prosecutor responded “there is context in the 

recording where he talks about an incident that ... law enforcement did investigate.” 

Officer Segura then discussed an incident occurring within months of the charged 

incident during which defendant’s residence was vandalized; one of the windows was 

shot with a BB or pellet gun.

The court then asked the prosecutor about the relevance of the recording. The 

prosecutor responded, “[H]e talks about shooting at rival gang members, he shows 

knowledge of the primary activities of the gang. I think this would also go to malice 
60.

aforethought, willful, deliberate, and premeditated. That he’s thought about these crimes 

before he committed them, he’s specifically calling out the same people that he killed in 

advance.” The court then asked how the prosecutor knew Sergio Cabral was involved in 

the vandalism. The prosecutor responded:

“No, not that, that he’s calling out rival gang members. We have 

heard that Mr. Cabral was AVL, that’s the rival as we heard of TLS. So 

this is a message to not just Sergio Cabral, but all the members of the AVL, 

I think it’s showing his malice well before he even shot.

“And I could go on about the other things that this also proves. It 

goes to every aspect of the gang enhancement. I have to prove knowledge 

and that these are the primary activities of the gang—”

The court noted such evidence appeared to “be more relevant to that area: The 

gang, culture of the gang, lifestyle of the gang, mentality.” Defense counsel argued, 

while such evidence “may be relevant, it’s unduly prejudicial given the context.” 

Defense counsel asked whether there were several other recordings. The prosecutor 

stated there were three in total; the shortest was a minute long and the longest was three 

minutes.

The court reviewed the recordings and held it would allow the prosecutor to play 

the first recording. The court declined to permit two more recordings reasoning “[u]nder 

[Evidence Code section] 352 it’s going to be cumulative, they seem to be the same 

nature, and you can refer to them that there are others that are similar to the one that [the 

prosecutor was] going to be playing.” The prosecutor specified one of the three 

recordings he wanted to use. The court directed the prosecutor to lay a proper foundation 

and the court would allow it.

Accordingly, the prosecution introduced a video recording in which defendant can 

be heard rapping, but he does not appear visually; rather, the screen is black or dark 

during the recording. The People also presented the jury with a transcript of the lyrics. 

The court advised the jury the transcript was not evidence but was to aid them in helping 

understand what was being played.
61.

Officer Segura explained the exhibit “is an instrumental song playing in the 

background, and there are some lyrics to the line of a subject by the name ... or moniker 

of Grumpy, he starts rapping about events that occurred in his life along with other 

contents in regard to the gang lifestyle and killing people, that kind of stuff.” He stated 

Grumpy is defendant’s moniker or nickname. Segura testified the word “chap” in the 

lyrics is “a derogatory term in the gang subculture referred to by the rivals of the Norteno 

criminal street gang.” He explained the lyric “‘I’m gonna aim right, put some 

motherfucker six feet deep’” meant defendant “is going to have somebody buried six feet 

underground.” And “‘ready to check a fuckin’ chap on the low key’” meant to silently or 

secretively put someone who disrespects him “in check.” The phrase “‘Smashing on

chaps’” in the lyrics referred to “assaulting or killing Nortenos.” And the word “clack” in 

the phrase “‘Ready to clack ... a fuckin’ chap’” is describing the sound of a gunshot. 

There was also a lyric, “‘we’re gonna kill a chap,’” that Officer Segura testified meant 

“[h]e’s going to kill a Norteno.”

Defendant admitted it was his voice in the recording and, when asked if he talked 

about killing a chap in the recordings, defendant testified, “It’s just little kid stuff, I was 

16 years old.”

In closing argument, the prosecutor referenced the rap lyrics in discussing 

deliberation and intent to kill:

“... And what’s ... important to remember in this situation is that 

this does not appear to be a decision that was made quickly at all. We 

heard from the defendant’s brother Christian that the defendant was 

insulted, he was disrespected, there was somewhere between 15 and 30 

minutes, a ‘cool off’ period where the defendant did, in fact, ‘cool off,’

where he calmed down, where he left the ... liquor store, went to the gas 

station, according to the defendant tried to pick up a friend and then they 

just start driving around randomly, just cruising for no discernible reason.

“So, again, intent to kill, the same thing. Deliberate, did he weigh 

the choices knowing the consequences? We know he was armed, we know 

that he thought about killing chaps in the past. We heard this music where 

he starts talking about killing a chap, and we heard this was part of—
62.

something that was on his mind that he had thought about this type of act 

before he even chose to—to commit a murder. We note that he had the gun, 

that it was loaded ready to go, that he’s driving around, he’s looking for a 

person with a gun, all of that shows that he weighed the choices, even if it 

was a terrible choice, knowing the consequences.

“And then finally did he decide to kill before he acted? And, again, 

we’re told that a cold, calculated decision to kill can be reached quickly. 

This is a cold, calculated decision. I would submit to you that when he had 

that gun and he started looking for these people, he had already 

premeditated, he had already made his decision.

“But if you don’t believe that, when he first pulled the gun out and 

pulled the trigger, think about that, you are taking out a gun, and you are 

going to end a human’s life, and then he decided to shoot five more times. 

Every single click of the revolver showed premeditation, showed that he 

decided to kill before he acted. When he aimed for the head and pulled the 

trigger. So that’s one theory of first degree murder.” (Italics added.)

The prosecutor also mentioned the rap music when discussing evidence defendant 

was an active participant in a gang, and he argued, in “that rap music, [defendant] is 

referencing all the crimes that the gang members commit. He is talking about killing 

chaps and—so that’s been proven.”

The court admonished the jury it could “consider evidence of gang activity only 

for the ... limited purpose of deciding whether:

“The defendant acted with the intent, purpose, and knowledge that 

are required to prove the gang related crimes and enhancements and special 

allegations charged; or the defendant had a motive to commit the crimes 

charged; or the defendant actually believed in the need to defend himself; 

or the defendant acted in the heat of passion.

“You may also consider this evidence when you evaluate the 

credibility or believability of a witness, and when you consider the facts 

and information relied on by an expert witness in reaching his or her

opinion.

“You may not consider this evidence for any other purpose. You 

may not conclude from this evidence that the defendant is a person of bad 

character or that he has a disposition to commit crimes.”
63.

B. Standard of Review and Applicable Law

Evidence is admissible only if it is relevant. (Evid. Code, § 350.) All relevant 

evidence is admissible except as otherwise provided by a statutory or constitutional 

exclusionary rule. (See Cal. Const., art. I, § 28, subd. (f)(2); Evid. Code, § 351.) 

Relevant evidence is defined as evidence “having any tendency in reason to prove or 

disprove any disputed fact that is of consequence to the determination of the action.” 

(Evid. Code, § 210.) The general test of relevance “‘is whether the evidence tends 

“logically, naturally, and by reasonable inference” to establish material facts such as 

identity, intent, or motive.’” (People v. Bivert (2011) 52 Cal.4th 96, 116–117.)

A court may exclude evidence “if its probative value is substantially outweighed 

by the probability that its admission will (a) necessitate undue consumption of time or (b) 

create substantial danger of undue prejudice, of confusing the issues, or of misleading the 

jury.” (Evid. Code, § 352.) A trial court has broad discretion in determining whether 

evidence is relevant and whether Evidence Code section 352 precludes its admission.

(People v. Mills (2010) 48 Cal.4th 158, 195; People v. Williams (2008) 43 Cal.4th 584,

634.) We review for an abuse of discretion a trial court’s rulings on the admissibility of 

evidence, including those turning on the relevance or probative value of the evidence in 

question. (See People v. Lee (2011) 51 Cal.4th 620, 643; People v. Hamilton (2009) 45

Cal.4th 863, 929–930.)

“[S]tate law error in admitting evidence is subject to the traditional Watson

[People v. Watson (1956) 46 Cal.2d 818] test: The reviewing court must ask whether it is 

reasonably probable the verdict would have been more favorable to the defendant absent 

the error.” (People v. Partida (2005) 37 Cal.4th 428, 439.) Federal due process is 

offended only if admission of the irrelevant evidence renders the trial fundamentally 

unfair. (Ibid.)

C. Assembly Bill No. 2799

On September 30, 2022, the Governor approved Assembly Bill No. 2799 (2021–

2022 Reg. Sess.) (Assembly Bill 2799) and filed it with the Secretary of State. Assembly 
64.

Bill 2799 expresses the Legislature’s intent to “provide a framework by which courts can 

ensure that the use of an accused person’s creative expression will not be used to 

introduce stereotypes or activate bias against the defendant, nor as character or propensity 

evidence; and to recognize that the use of rap lyrics and other creative expression as 

circumstantial evidence of motive or intent is not a sufficient justification to overcome 

substantial evidence that the introduction of rap lyrics creates a substantial risk of unfair 

prejudice.” (Stats. 2022, ch. 973, § 1, subd. (b).)

To that end, effective January 1, 2023, Assembly Bill 2799 adds section 352.2 to 

the Evidence Code, which requires:

“(a) In any criminal proceeding where a party seeks to admit as evidence a 

form of creative expression, the court, while balancing the probative value 

of that evidence against the substantial danger of undue prejudice under 

Section 352, shall consider, in addition to the factors listed in Section 352, 

that: (1) the probative value of such expression for its literal truth or as a 

truthful narrative is minimal unless that expression is created near in time to 

the charged crime or crimes, bears a sufficient level of similarity to the 

charged crime or crimes, or includes factual detail not otherwise publicly 

available; and (2) undue prejudice includes, but is not limited to, the 

possibility that the trier of fact will, in violation of Section 1101, treat the 

expression as evidence of the defendant’s propensity for violence or general 

criminal disposition as well as the possibility that the evidence will 

explicitly or implicitly inject racial bias into the proceedings.”

Evidence Code section 352.2, subdivision (d) provides the admissibility of a form 

of creative expression shall be heard in limine and determined by the court, outside the 

presence and hearing of the jury, pursuant to Evidence Code section 402, and the court 

“shall state on the record its ruling and its reasons therefor.” (Evid. Code, § 352.2, subd. 

(d).)

D. Analysis

Defendant argues the trial court should have excluded the video recording of him 

rapping pursuant to Evidence Code section 352 as more prejudicial than probative. He 

asserts gang evidence poses a “high risk of serious prejudice.” He likens his case to 

People v. Coneal (2019) 41 Cal.App.5th 951 (Coneal), in which the appellate court 
65.

concluded the admission of rap videos was an abuse of discretion, but the error was 

harmless. He argues, as in Coneal, “this case admitted a plethora of gang evidence”

(boldface omitted) and, when defendant testified, he admitted he was a member of TLS

on the date of the offense. Thus, there was “overwhelming evidence concerning 

[defendant’s] participation in the TLS gang” and “[t]he rap lyrics added nothing more of 

evidentiary value to the prosecutions’ [sic] case.” Defendant also argues the court should 

have excluded evidence about the purported meaning of the rap lyrics because the lyrics 

should not have been construed literally. He asserts the prosecutor used the lyrics as 

evidence of a pattern of gang activity and defendant’s intent to kill, citing the 

prosecutor’s closing argument. In arguing the error in admitting the rap lyrics was 

prejudicial, defendant acknowledges some gang evidence was relevant and admissible in 

light of the charges. But, he contends, “the rap lyrics went beyond the bounds of the 

other gang evidence and was [sic] extremely prejudicial” in that they “were akin to 

evidence of a confession.” He argues the lyrics themselves and the manner in which the 

prosecutor used them to argue they were “an accurate and reliable manifestation” of 

defendant’s thoughts, knowledge, and intent, were “extremely prejudicial” because there 

was little other evidence of defendant’s intent to kill. He argues the admission of the rap 

lyrics in this case violated his due process rights “because its only true relevance was to 

show that he acted in conformity with bad character.” The People respond the rap lyrics 

at issue “were highly probative” of defendant’s mental state and to prove defendant’s 

involvement with TLS and his knowledge of TLS’s primary activities. They assert the 

court here limited the introduction of such evidence, excluding two of the three videos 

offered, and no screenshots from the videos were introduced, as in Coneal. They further 

respond, defense counsel never objected to the prosecutor’s argument regarding the rap 

lyrics, so defendant’s challenge to the related argument is forfeited. They further argue 

the lyrics were probative of their literal truth, so an objection was not warranted. Finally, 

they assert the rap lyrics were not prejudicial in light of the other evidence inculpating 
66.

defendant, including defendant’s confession to police when he was interviewed. In 

supplemental briefing, defendant asserts the rap lyrics were also inadmissible under 

newly enacted Evidence Code section 352.2. The People disagree that Assembly Bill 

2799 should operate retroactively and assert, regardless, any error in the admission of the 

rap lyrics was harmless. We agree with the People that any error in the admission of the 

rap lyrics was harmless.

In Coneal, the prosecution introduced multiple rap videos, a rap audio recording, 

and multiple screenshots capturing images from the videos at trial. (Coneal, supra, 41 

Cal.App.5th at pp. 960–963, 966.) On appeal, the defendant argued the court erred in 

admitting five of the videos because they were cumulative and more prejudicial than 

probative. (Id. at pp. 965–966.) The Coneal court held the admission of the rap videos 

was error because the probative value of the videos was minimal, either because they 

were cumulative of other, less prejudicial evidence, or because their probative value 

depended on construing the lyrics as literal statements of fact or intent without a 

persuasive basis to do so. (Id. at pp. 953, 966–972.) And, the prejudicial nature of the 

violent, inflammatory lyrics substantially outweighed their minimal probative value. (Id. 

at pp. 953–954, 970–972.) The court explained “the rap videos paint a picture of 

appellant and his fellow gang members as eagerly and ruthlessly seeking out and 

engaging in violence, with no empathy for their victims. While it may be that this picture 

is accurate, it poses a significant danger that the jury will use it as evidence of appellant’s 

violent character and criminal propensity in violation of Evidence Code section 1101, 

subdivision (a).” (Id. at pp. 970–971, fn. omitted.) The Coneal court noted it did “not 

mean to suggest that lyrics are never probative of their literal truth. For example, where 

lyrics are written within a reasonable period of time before or after the charged crime and 

bear a sufficient level of similarity to the charged crime, their probative value as a 

statement of fact is increased.” (Id. at p. 969.) The Coneal court cautioned that “[t]rial 

courts should carefully consider whether the potential for prejudice posed by [rap songs 
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that promote and glorify violence] outweighs their probative value. In particular, where 

the rap lyrics are cumulative of other evidence ... or where the probative value rests on 

construing the lyrics literally without a persuasive basis to do so, the probative value will 

often be ‘substantially outweighed by [the] prejudicial effect.’” (41 Cal.App.5th at pp. 

971–972.) However, the court concluded the error in the admission of such evidence was 

harmless considering the other evidence of the defendant’s guilt. (Id. at pp. 954, 972–

973.)

Here, the court limited the introduction of the rap recordings to one recording 

approximately three minutes long; this is in contrast to Coneal, in which the prosecution 

introduced five videos, an audio recording, and multiple screenshots from the videos. We 

further acknowledge, to the extent the court admitted the rap recording to evidence gang 

culture and defendant’s gang association, such evidence was relevant; but there was also 

other probative evidence on these topics. Indeed, defendant himself testified he was a 

gang member at the time of the offense. Additionally, by defendant’s own testimony, the 

confrontation that escalated to him shooting Cabral involved Cabral’s group throwing 

rival gang signs and using slurs. And there was other testimony and evidence regarding 

defendant’s gang affiliation: pictures of his gang-related tattoos, a photograph of him 

making a gang hand sign, a video of him burning a red bandana—the color representing 

the rival Norteño gang—testimony he had a blue bandana and a paper of the 13 Bonds on 

his person when he was arrested, and the testimony of other officers who had personal 

past interactions with defendant and other gang members, as well as evidence of gang 

culture from the prosecution’s gang expert and other witnesses.

Nevertheless, we need not decide whether the court abused its discretion in 

admitting such evidence because, even if we were to assume, arguendo, the trial court 

erred in admitting this recording, we conclude the error was harmless under the standard 
68.

articulated in People v. Watson, supra, 46 Cal.2d at page 836.7 Put differently, we 

cannot conclude it is reasonably probable defendant would have obtained a more 

favorable result if the recording had been excluded. (See People v. Young (2019) 7 

Cal.5th 905, 931 [“‘When evidence is erroneously admitted, we do not reverse a 

conviction unless it is reasonably probable that a result more favorable to the defendant 

would have occurred absent the error’”]; People v. Powell (2018) 5 Cal.5th 921, 951 

[same].) And we cannot conclude the admission of the rap video amounted to a violation 

of defendant’s due process rights, rendering the trial fundamentally unfair. (See People 

v. Partida, supra, 37 Cal.4th at p. 439 [“the admission of evidence, even if erroneous 

under state law, results in a due process violation only if it makes the trial fundamentally 

unfair”].)

In so concluding, we note the evidence in this case against defendant was strong. 

Defendant admitted to committing the shooting both after the offense and at trial. His 

theory at trial was he acted in self-defense. However, he admitted he did not tell the 

police in his interview following the incident that any member of Sergio Cabral’s group 

was armed or that he was acting in self-defense. And, while he and Christian both 

testified at trial that one of the individuals in Cabral’s group flashed a gun, as discussed, 

the prosecution presented previous testimony in which Christian denied any member of 

the victim’s group displayed a gun at the intersection where the fatal shooting occurred. 

Additionally, there was other evidence of defendant’s intent to kill, premeditation and 

deliberation,8 and defendant’s gang affiliation such that we cannot conclude admission of 

the rap video prejudiced defendant. The undisputed evidence established defendant fired 

multiple shots and the victim was hit with multiple bullets. One of the bullet entry 

7Because we are assuming error, we need not address the parties’ arguments regarding

the retroactivity and application of Assembly Bill 2799 to this case.

8Additionally, premeditation and deliberation were not necessary to establishing first

degree murder given that defendant could also be convicted of first degree murder under a theory 

of discharging a firearm from a motor vehicle. (See § 189, subd.(a).) Indeed, defendant himself 

admitted he discharged a firearm from a motor vehicle resulting in Cabral’s death.
69.

wounds was in Cabral’s lower back, providing evidence he was shot while his back was 

turned. There was also evidence of a pause between two sets of shots and a lapse of time 

between the initial confrontation at the liquor store and the ultimate shooting. And, while

the lyrics of the rap song reflected a general animosity toward rival gang members, it did 

not relate specific facts incriminating defendant in this shooting such that it was “akin to 

a confession” as defendant argues.

In light of the strong evidence incriminating defendant and discrediting his selfdefense theory, we cannot conclude the admission of the rap recording prejudiced 

defendant. Rather, we conclude any potential error in its admission was harmless. (See 

Coneal, supra, 41 Cal.App.5th at pp. 972–973 [error in admitting five rap videos in 

violation of Evid. Code, § 352 was harmless where evidence incriminating defendant was 

strong]; People v. Jasmin (2008) 167 Cal.App.4th 98, 114 [any error in admitting rap 

lyrics focused on guns and violence was harmless in light of “overwhelming evidence 

presented at trial”].)

VI. Jury Was Properly Instructed on Self-defense

Defendant next argues the court erred by failing to sua sponte instruct the jury it 

should consider defendant’s youth in assessing his claim of self-defense. We disagree.

A. Relevant Factual Background

The court instructed the jury on homicide and self-defense pursuant to CALCRIM 

Nos. 500 and 505. As to self-defense, CALCRIM No. 505 instructs the jury, in relevant 

part, “When deciding whether the defendant’s belief was reasonable, consider all the 

circumstances as they were known to and appeared to the defendant and consider what a 

reasonable person in a similar situation with similar knowledge would have believed.”

The court also instructed the jury on imperfect self-defense in accordance with 

CALCRIM No. 571, including, in relevant part, “In evaluating the defendant’s beliefs, 

consider all the circumstance [sic] as they were known and appeared to the defendant.”
70.

Additionally, the court instructed the jury on voluntary manslaughter pursuant to 

CALCRIM No. 570, which provides, in relevant part: “It is not enough that the 

defendant simply was provoked. The defendant is not allowed to set up his own standard 

of conduct. You must decide whether the defendant was provoked and whether the 

provocation was sufficient. In deciding whether the provocation was sufficient, consider 

whether a person of average disposition in the same situation and knowing the same facts 

would have reacted from passion rather than from judgment. [¶] If enough time passed 

between provocation and the killing for a person of an average disposition to ‘cool off’

and regain his or her clear reasoning and judgment, then the killing is not reduced to 

voluntary manslaughter on this basis.”

Defense counsel did not object to these instructions, request additional 

instructions, or ask for any modifications or amplifications to these instructions. Rather 

he stated he was “in agreement” with them, and the jury instructions the court gave to the 

jury were “proper.” In closing argument, defense counsel asserted defendant was 

provoked, and he argued the jury should consider how a reasonable 16 year old in the

situation would react:

“And then would an average person or a reasonable person, excuse me, not 

average, would a person of average disposition act rashly without due 

deliberation? We are talking about a reasonable person. You also have to 

consider the fact, you know, a reasonable person in similar circumstances 

and situations. So a reasonable 16 year old in that situation given the 

stimulus that he was confronted with, was it reasonable for him to react in 

the way that he did? Not whether it was right or wrong, we are still talking 

about an unlawful killing, but based on these three factors are they met? 

That would serve to reduce the murder to a voluntary manslaughter.”

B. Standard of Review

“‘“It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence. [Citations.] The general principles of law governing the case are those 

principles closely and openly connected with the facts before the court, and which are 
71.

necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19 

Cal.4th 142, 154.) A trial court has a duty to instruct sua sponte on particular defenses 

“‘“‘if it appears that the defendant is relying on such a defense, or if there is substantial 

evidence supportive of such a defense and the defense is not inconsistent with the 

defendant’s theory of the case.’”’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1052; 

accord, People v. Salas (2006) 37 Cal.4th 967, 982 [trial court has duty to instruct sua 

sponte on any affirmative defense “for which the record contains substantial evidence ...

unless the defense is inconsistent with the defendant’s theory of the case”].)

“‘“[W]hen a defendant presents evidence to attempt to negate or rebut the 

prosecution’s proof of an element of the offense, a defendant is not presenting a special 

defense invoking sua sponte instructional duties. While a court may well have a duty to 

give a ‘pinpoint’ instruction relating such evidence to the elements of the offense and to 

the jury’s duty to acquit if the evidence produces a reasonable doubt, such ‘pinpoint’

instructions ... must be given only upon request.”’” (People v. Anderson (2011) 51 

Cal.4th 989, 996–997.) This is because a trial court’s obligation to give general 

instructions sua sponte does not extend to “pinpoint” instructions or optional paragraphs 

of instructions. (See People v. Hughes (2002) 27 Cal.4th 287, 361 [“Even if proper, ... 

pinpoint instructions ‘are not required to be given sua sponte’”]; People v. Gutierrez

(2009) 45 Cal.4th 789, 824 [defendant is entitled to pinpoint instructions, upon request, 

only when appropriate; but such instructions “‘are not required to be given sua sponte’”]; 

accord, People v. Whalen (2013) 56 Cal.4th 1, 81–82 [“‘A trial court has no sua sponte 

duty to revise or improve upon an accurate statement of law without a request from 

counsel [citation], and failure to request clarification of an otherwise correct instruction 

forfeits the claim of error for purposes of appeal’”], disapproved on other grounds in 

People v. Romero and Self (2015) 62 Cal.4th 1, 44, fn. 17; People v. Lawley (2002) 27 

Cal.4th 102, 160–161 [court not required to modify standard instruction absent request by 

defendant].)
72.

“‘A party may not complain on appeal that an instruction correct in law and 

responsive to the evidence was too general or incomplete unless the party has requested 

appropriate clarifying or amplifying language.’” (People v. Landry (2016) 2 Cal.5th 52, 

99–100.) We may nevertheless review a forfeited claim of error if it affected a 

defendant’s substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572, fn. 

15; accord, People v. Andersen (1994) 26 Cal.App.4th 1241, 1249 [failure to object to 

instruction waives claim of error “unless the claimed error affected the substantial rights 

of the defendant, i.e., resulted in a miscarriage of justice, making it reasonably probable 

the defendant would have obtained a more favorable result in the absence of error”].) 

“Ascertaining whether claimed instructional error affected the substantial rights of the 

defendant necessarily requires an examination of the merits of the claim—at least to the 

extent of ascertaining whether the asserted error would result in prejudice if error it was.” 

(People v. Andersen, supra, at p. 1249.)

We review claims of instructional error de novo. (People v. Parker (2022) 13 

Cal.5th 1, 66; People v. Rivera (2019) 7 Cal.5th 306, 326.) “‘In assessing a claim of 

instructional error or ambiguity, we consider the instructions as a whole to determine 

whether there is a reasonable likelihood the jury was misled.’” (People v. Tran (2022) 13 

Cal.5th 1169, 1199; accord, People v. Holmes, McClain and Newborn, supra, 12 Cal.5th 

at p. 791.) We assume “jurors are intelligent and well able to understand and integrate all 

the instructions given.” (People v. Holmes, McClain and Newborn, at p. 791.)

C. Applicable Law

“For [a] killing to be in self-defense, the defendant must actually and reasonably 

believe in the need to defend. [Citation.] If the belief subjectively exists but is 

objectively unreasonable, there is ‘imperfect self-defense,’ i.e., ‘the defendant is deemed 

to have acted without malice and cannot be convicted of murder,’ but can be convicted of 

manslaughter. [Citation.] To constitute ‘perfect self-defense,’ i.e., to exonerate the 

person completely, the belief must also be objectively reasonable. [Citations.] As the 
73.

Legislature has stated, ‘[T]he circumstances must be sufficient to excite the fears of a 

reasonable person....’ (... § 198; see also § 197, subds. 2, 3.) Moreover, for either 

perfect or imperfect self-defense, the fear must be of imminent harm. ‘Fear of future 

harm—no matter how great the fear and no matter how great the likelihood of the harm—

will not suffice. The defendant’s fear must be of imminent danger to life or great bodily 

injury.’ [Citation.]” (People v. Humphrey (1996) 13 Cal.4th 1073, 1082, fn. omitted.)

“Although the belief in the need to defend must be objectively reasonable, a jury 

must consider what ‘would appear to be necessary to a reasonable person in a similar 

situation and with similar knowledge....’ (CALJIC No. 5.50.) It judges reasonableness 

‘from the point of view of a reasonable person in the position of defendant....’ 

[Citation.] To do this, it must consider all the ‘“‘facts and circumstances ... in 

determining whether the defendant acted in a manner in which a reasonable man would 

act in protecting his own life or bodily safety.’”’ [Citation.] As we stated long ago, ‘... a 

defendant is entitled to have a jury take into consideration all the elements in the case 

which might be expected to operate on his mind....’ [Citation.]” (People v. Humphrey, 

supra, 13 Cal.4th at pp. 1082–1083.)

D. Analysis

Defendant asserts “[t]he instructions given to [the] jury, holding him to an adult 

standard of reasonableness, were erroneous.” He contends his trial “was rendered 

fundamentally unfair, depriving him of due process, and the right to a reliable jury 

verdict” because the court had a sua sponte duty to instruct the jury to consider 

defendant’s youth as a factor in determining whether he subjectively believed in the need 

to use deadly force, and whether his belief was objectively reasonable. He asserts, the 

lack of such an instruction lessened the prosecution’s burden of proof and prejudiced 

him. He relies heavily upon J.D.B. v. North Carolina (2011) 564 U.S. 261, 271–276, in 

which the United States Supreme Court held youth is relevant to an objective “custody”

determination in a Miranda v. Arizona (1966) 384 U.S. 436 analysis. He also cites to 
74.

Roper v. Simmons (2005) 543 U.S. 551 and Graham v. Florida (2010) 560 U.S. 48, 

arguing these decisions emphasize “the vulnerabilities of juveniles” and support his 

argument the jury should have been instructed to consider youth as a factor in considering 

perfect and imperfect self-defense. The People disagree with defendant’s contention and 

argue the jury was correctly instructed with CALCRIM Nos. 505 and 571 and any 

modification or additional instruction required a request from defense counsel, which was 

not made. They assert “the jury knew that it should evaluate [defendant’s] actual belief 

in the need to use lethal force from his perspective, which necessarily included factors 

specific to him, such as his youth.”

In supplemental briefing, defendant cites new legislation to argue “youth has 

become a significant factor in many arenas.” He argues, “lawmakers and courts are 

recognizing the profound developmental differences between youthful and adult 

offenders, and changing laws to afford consideration of youth,” and that research “should 

be considered when an adolescent’s state of mind is called into question in situations such 

as perfect or imperfect self-defense, where jurors are called upon to view the situation 

through the eyes of the defendant.” He notes the passage of Welfare and Institutions 

Code section 625.6, which requires minors under 16 (now 17) to be allowed to consult 

with counsel before the police conduct a custodial interrogation; Assembly Bill No. 124

(2021–2022 Reg. Sess.), which requires prosecutors to consider whether “[t]he person is 

a youth, or was a youth at the time of the commission of the offense” (§ 1016.7) in plea 

bargaining and, in conjunction with Senate Bill No. 567 (2021–2022 Reg. Sess.), requires 

the imposition of the lower term when certain specified circumstances exist, such as 

youth, unless contrary to the interests of justice; Senate Bill No. 383 (2021–2022 Reg. 

Sess.), which authorizes, in part, a juvenile court receiving a delinquency case transferred 

from another county to determine whether an eligible minor is suitable for deferred entry 

of judgment even if the transferring court did not; Assembly Bill No. 624 (2021–2022 

Reg. Sess.), which makes an order transferring a minor from juvenile court to adult 
75.

criminal court an appealable order; Senate Bill 81, which requires a court to “afford great 

weight” to youth, childhood trauma, and other factors in exercising discretion to strike 

enhancements; and the upholding of Senate Bill No. 1391 (2017–2018 Reg. Sess.), which 

provides a minor must be at least 16 years old to be tried in adult court.9 

1. Forfeiture

Here, defendant forfeited his claim of instructional error because he failed to 

object to the given self-defense instructions or request amplification or modified 

instructions below. And the trial court correctly instructed on the applicable general 

principles of law.

The self-defense instruction directed the jury to consider “all the circumstances as 

they were known to and appeared to the defendant and consider what a reasonable person 

in a similar situation with similar knowledge would have believed.” (CALCRIM 

No. 505.) The voluntary manslaughter instruction similarly directed the jury to “consider 

whether a person of average disposition, in the same situation and knowing the same 

facts [as defendant], would have reacted from passion rather than from judgment.” 

(CALCRIM No. 570.) Those instructions accurately and completely stated the governing 

principles. (See People v. Humphrey, supra, 13 Cal.4th at pp. 1082–1083, 1087; People 

v. Jones (2014) 223 Cal.App.4th 995, 999–1001.) Thus, the court had no sua sponte duty 

to amplify those instructions with further information not “so closely and openly 

connected with the facts before the court as to come within the court’s sua sponte 

instructional obligations.” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101 

[trial court’s failure to inform jury it could consider defendant’s battered woman 

syndrome in assessing whether she perceived imminent harm from victim did not fall 

9He also contends, “in the context of youthful offender parole hearings under section 

3051,” there has “been a growing consensus that the Legislature should revisit where it has 

drawn the line with section 3051, subdivision (h), and reconsider whether a youthful offender 

who was sentenced to [life without the possibility of parole] for a crime committed at an age 

while cognitive brain development was still ongoing should be afforded the possibility of release 

like those under 18 years old at the time of their offense.”
76.

within court’s sua sponte instruction obligation].) To the extent defendant wanted 

additional instructions, he was required to object to the given instructions and request 

amplification, which he did not do. (See People v. Jones (2013) 57 Cal.4th 899, 969

[“‘[a] party may not complain on appeal that an instruction correct in law and responsive 

to the evidence was too general or incomplete unless the party has requested appropriate 

clarifying or amplifying language’”]; People v. Lee, supra, 51 Cal.4th at p. 638 [“[a] trial 

court has no sua sponte duty to revise or improve upon an accurate statement of law 

without a request from counsel [citation], and failure to request clarification of an 

otherwise correct instruction forfeits the claim of error for purposes of appeal”].) 

Irrespective, as discussed further below, we conclude defendant’s claim fails on its 

merits.

2. Claim of Instructional Error as to Objective Reasonableness of 

Belief in Need for Self-defense

First, we reject defendant’s contention that the instructions should have been 

modified to inform the jury to consider his youth when considering whether his belief in 

the need for self-defense was objectively reasonable. In support of his argument, 

defendant relies heavily upon J.D.B. v. North Carolina, supra, 564 U.S. 261, in which the 

United States Supreme Court held youth is relevant to an objective “custody”

determination in a Miranda analysis. Specifically, J.D.B. held that, “so long as the 

child’s age was known to the officer at the time of police questioning, or would have 

been objectively apparent to a reasonable officer, its inclusion in the custody analysis is 

consistent with the objective nature of that test.” (J.D.B., supra, at p. 277.) However, 

J.D.B. did not discuss, let alone mandate, that any type of jury instruction be given to a 

jury. And we have found no other case requiring a court to modify the standard jury 

instructions on self-defense and imperfect self-defense to account for a defendant’s age in 

assessing the objective reasonableness of a defendant’s belief in the need for self-defense. 

Rather, CALCRIM Nos. 505 and 571 correctly state the law, and the trial court had no 
77.

sua sponte duty to modify them as defendant contends. (See People v. Lopez (2011) 199 

Cal.App.4th 1297, 1306 [“CALCRIM Nos. 505, 571, and 604 correctly stated the law”].)

Indeed, while the California Supreme Court has approved of the consideration of 

evidence of a defendant’s situation and knowledge in considering the objective 

reasonableness of his or her beliefs, it has reiterated that the “ultimate question” is what a 

reasonable person would have believed. In People v. Humphrey, the California Supreme 

Court held the trial court prejudicially erred in instructing the jury it could only consider 

evidence related to battered woman’s syndrome in deciding whether the defendant 

actually believed she needed to kill in self-defense, but that same evidence could not be 

considered or used in evaluating the objective reasonableness requirement for perfect 

self-defense.10 (People v. Humphrey, supra, 13 Cal.4th at pp. 1076–1077, 1081, 1086–

1087.) The Humphrey court made clear, however, that even though the jury must 

consider a defendant’s situation and knowledge—which makes evidence pertinent to the 

defendant’s situation and knowledge relevant—“the ultimate question is whether a 

reasonable person, not a reasonable battered woman, would believe in the need to kill to 

prevent imminent harm.” (Id. at p. 1087.) In so holding, the court noted it was not 

“changing the standard from objective to subjective, or replacing the reasonable ‘person’

standard with a reasonable ‘battered woman’ standard.” (Ibid.) And its decision would 

not, “in another context, compel adoption of a ‘“reasonable gang member” standard.’” 

(Ibid.)

Citing the instruction in People v. Humphrey as a “model,” defendant contends the 

jury should have been instructed, “Evidence regarding [defendant]’s youth has been 

introduced in this case. Such evidence may be considered by you for the purpose of 

determining whether or not the defendant actually believed it was necessary to kill in 

self-defense, a requirement for both perfect and imperfect self-defense, and whether the 

10In Humphrey, the jury convicted defendant of voluntary manslaughter and acquitted her 

of murder. (People v. Humphrey, supra, 13 Cal.4th at p. 1082.)
78.

defendant’s belief was objectively reasonable, taking into consideration the defendant’s 

age and perception.” But this is not what Humphrey requires.

Rather, Humphrey establishes that, even if evidence of the defendant’s youth was 

admitted, a court does not err in failing to “replac[e] the reasonable ‘person’ standard,”

when instructing on self-defense. (People v. Humphrey, supra, 13 Cal.4th at p. 1087 

[reiterating the “ultimate question is whether a reasonable person ... would believe in the 

need to kill to prevent imminent harm”]; accord, People v. Sotelo- Urena (2016) 4 

Cal.App.5th 732, 751–752 [admitting expert testimony regarding dangers associated with 

chronic homelessness does not create a “reasonable homeless person” standard]; see

People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [“a reasonable person is not one

who hears voices due to severe mental illness” but a “‘normal person’”].) And, unlike in 

Humphrey, the court did not instruct the jury it could not consider defendant’s age or 

youth in evaluating his situation and knowledge in considering whether the use of selfdefense was objectively reasonable. Rather, the court instructed the jury, in accordance 

with CALCRIM No. 505: “When deciding whether the defendant’s belief was 

reasonable, consider all the circumstances as they were known to and appeared to the 

defendant and consider what a reasonable person in a similar situation with similar 

knowledge would have believed.”

11

 Thus, the instructional error at issue in Humphrey is 

not present here. Put differently, defendant’s cited authorities do not support his 

contention that the objective standard—how a reasonable person would have perceived 

the risk—should have been turned into a subjective one. Rather, Humphrey and Sotelo11Notably, defendant contends the instructions held him to “an adult standard of 

reasonableness.” But, as noted, and contrary to defendant’s contention, the instructions told the 

jury, in considering the reasonableness of defendant’s actions, to consider “what a reasonable 

person in a similar situation with similar knowledge would have believed” (italics added); this is 

not the same as telling the jury to consider what a “reasonable adult” would have believed.
79.

Urena support our rejection of defendant’s contention.12 (See People v. Humphrey, 

supra, at p. 1087.)

Defendant relies primarily on authority related to punishment of juvenile offenders 

in support of his proposition. (E.g., Graham v. Florida, supra, 560 U.S. 48, Roper v. 

Simmons, supra, 543 U.S. 551; Senate Bill 81; Assembly Bill No. 124 (2021–2022 Reg. 

Sess.); § 3051.) However, none of these cases or legislative developments purport to 

change the elements of an offense, and we have found no case that extends them for that 

purpose. Thus, the cited authorities are inapposite.

Irrespective, defendant was not prejudiced by the lack of such an instruction. The 

alleged erroneous instruction would only be potentially prejudicial if the jury found 

defendant actually believed in the need for self-defense. But here, the jury concluded 

beyond a reasonable doubt that defendant did not actually believe in the need for selfdefense because it convicted him of murder, not voluntary manslaughter. Having so 

found, the jury was not required to determine whether any such belief was reasonable. 

12Defendant also cites to People v. Mathews (1994) 25 Cal.App.4th 89 (Mathews) in 

support of his contention. However, Mathewsis also inapposite. In Mathews, an elderly, visionand hearing-impaired defendant brandished a shotgun when officers executed a search warrant 

on his home. (Id. at p. 94.) The Mathews court held the trial court’s refusal to grant the 

defendant’s request for a pinpoint instruction that would have informed the jury that “‘[i]n 

considering the self-defense issues, [it] must take into account any sensory impairment the 

defendant had in determining how a reasonable person with such disabilities would have acted.’”

(Id. at pp. 98–99.) The Mathews court held the refusal to give the pinpoint instruction was error 

because it made “no sense, either in law or logic, to hold appellant to the standard of a reasonable 

person with normal eyesight and hearing.” (Id. at p. 99.) The court explained that “[w]hat is 

‘apparent’ to a reasonable person who can see and hear is not ‘apparent’ to a person who is blind 

and hearing impaired.” (Id. at p. 100.) Accordingly, the Mathews court imported a rule of tort 

law and stated, “While the objective reasonable person standard remains, it is the reasonable 

person with a similar physical disability.” (Id. at p. 99.)

Here, as discussed, defendant did not request a pinpoint instruction or modification of the 

standard jury instructions on self-defense and imperfect self-defense; so the posture of this case 

is different from that in Mathews as we are considering whether the court had a sua sponte duty

to provide an additional instruction on the jury’s consideration of youth in evaluating the 

objective reasonableness of the belief in the need for self-defense. Furthermore, here, defendant 

did not have a physical disability that prevented him from seeing and hearing the circumstances 

around him like in Mathews. Thus, the circumstances of this case are distinguishable.
80.

Thus, even under the more rigorous test to assess prejudice articulated in Chapman v. 

California (1967) 386 U.S. 18, we can conclude “beyond a reasonable doubt” that any 

alleged error by the trial court in failing to specifically instruct the jury to consider 

defendant’s youth in determining the reasonableness of any belief he had in the need to 

act in self-defense, “did not contribute to the verdict obtained.” (Id. at p. 24.)

3. Claim of Instructional Error as to Defendant’s Actual Belief in 

Need for Self-defense

Furthermore, while we agree defendant’s age could be considered in assessing 

what defendant actually believed, we reject defendant’s contention that the trial court was 

required to provide a specific instruction on youth in instructing the jury on how to 

evaluate whether defendant actually believed in the need to use self-defense. Here, the 

jury was instructed, “In evaluating the defendant’s beliefs, consider all the circumstances 

as they were known and appeared to the defendant.” (Italics added.) Implicit in this 

instruction is a requirement to consider how the situation appeared to defendant given his 

age. And none of defendant’s cited authorities stand for the proposition that a trial court 

is required to sua sponte instruct the jury further.

Notably, defendant does not argue he was prevented from introducing evidence or 

presenting argument regarding the effect of his youth or age on his actual perceived need 

for self-defense or the reasonableness of that belief. (Cf. People v. Sotelo- Urena, supra,

4 Cal.App.5th at pp. 745–752 [concluding court abused its discretion in excluding expert 

testimony on “why a chronically homeless individual would experience a heightened fear 

of aggression” where such evidence was relevant to defendant’s actual belief in need to 

use lethal force and it would assist jury in weighing reasonableness of defendant’s belief

of imminent harm].) Indeed, during closing argument, defense counsel expressly drew 

attention to defendant’s age, arguing the jury should consider “a reasonable 16 year old in 

that situation given the stimulus that he was confronted with, was it reasonable for him to 

react in the way that he did?” Thus, defense counsel expressly informed the jurors of 

defendant’s age and encouraged them to consider it in evaluating defendant’s belief in the 
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need for self-defense. Accordingly, we also conclude beyond a reasonable doubt that a 

jury instruction pinpointing defendant’s age as a factor to be considered when 

determining whether he actually believed in the need for self-defense would not have 

affected the jury’s verdict. (Chapman v. California, supra, 386 U.S. at p. 24.)

VII. Prosecutorial Misconduct

Defendant next argues the prosecutor engaged in prejudicial misconduct during his 

rebuttal argument. We disagree.

A. Relevant Background

At the end of his rebuttal argument, the prosecutor argued:

“And we heard that Sergio Cabral was also to some extent a gang 

member, that he according to the defendant may have been threatening him 

in the past. But that doesn’t mean that [defendant]should not still be held 

accountable for what he did. Every life has value, every human being has 

value. We don’t know what would have happened if he had survived, what 

he could have done with his life. Every single person, whoever they are, 

does not deserve this. They do not deserve to be gunned down in front of 

their home for their loved one to come outside to have to turn over their 

body. It’s—it’s not—it’s not right.

“And what I’m asking is that you hold [defendant] accountable. 

That you send a message that we will not allow this type of violence on our 

streets in Kings County. That ... this is a community that will not tolerate 

gang violence, and I would ask that you find him guilty of all counts, thank 

you.”

Defense counsel did not object to the referenced argument.

The court instructed the jury: “Remember if either attorney misstates the evidence 

or law, you will rely on the evidence as presented in the trial and the law as stated to you 

by me.”

B. Standard of Review 

“A prosecutor’s conduct violates the Fourteenth Amendment to the federal 

Constitution when it infects the trial with such unfairness as to make the conviction a 

denial of due process. Conduct by a prosecutor that does not render a criminal trial 
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fundamentally unfair is prosecutorial misconduct under state law only if it involves the 

use of deceptive or reprehensible methods to attempt to persuade either the trial court or 

the jury.” (People v. Morales (2001) 25 Cal.4th 34, 44; see People v. Mendoza (2007) 42 

Cal.4th 686, 700; People v. Farnam (2002) 28 Cal.4th 107, 167.) “The focus of the 

inquiry is on the effect of the prosecutor’s action on the defendant, not on the intent or 

bad faith of the prosecutor.” (People v. Mendoza, supra, at p. 700.) “‘A defendant’s 

conviction will not be reversed for prosecutorial misconduct, however, unless it is 

reasonably probable that a result more favorable to the defendant would have been 

reached without the misconduct.’” (People v. Tully (2012) 54 Cal.4th 952, 1010.)

“‘As a general rule a defendant may not complain on appeal of prosecutorial

misconduct unless in a timely fashion—and on the same ground—the defendant made an 

assignment of misconduct and requested that the jury be admonished to disregard the 

impropriety.’” (People v. Hill (1998) 17 Cal.4th 800, 820.) An exception is made if a 

timely objection or request for admonition would have been futile, or if an admonition 

would not have cured the harm caused by the misconduct. (Ibid.) “The reason for this 

rule, of course, is that ‘the trial court should be given an opportunity to correct the abuse 

and thus, if possible, prevent by suitable instructions the harmful effect upon the minds of 

the jury.’” (People v. Green (1980) 27 Cal.3d 1, 27, overruled on other grounds in 

People v. Martinez (1999) 20 Cal.4th 225, 241.)

C. Analysis

Defendant argues the prosecutor committed misconduct “by calling upon the jury 

to fill a greater societal goal by finding [defendant] guilty,” depriving defendant of due 

process and rendering his trial fundamentally unfair. He asserts, the prosecutor’s 

argument “improperly invited the jury to convict” him “‘“in order to protect community 

values, preserve civil order, or deter future lawbreaking,”’” and it “was contrary to the 

principles set forth in U.S. v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149.” He 
83.

contends, if the error was forfeited based on his counsel’s failure to object, his counsel 

was ineffective on that basis and reversal is still required.

Initially, defendant’s claim is forfeited because he did not object to the referenced 

argument he now challenges on appeal. “‘“As a general rule, a defendant may not 

complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the 

same ground—the defendant made an assignment of misconduct and requested that the 

jury be admonished to disregard the impropriety.”’” (People v. Covarrubias (2016) 1 

Cal.5th 838, 894; accord, People v. Valencia (2008) 43 Cal.4th 268, 281; People v. 

Samayoa (1997) 15 Cal.4th 795, 841; People v. McDowell (2012) 54 Cal.4th 395, 436.) 

Here, defendant acknowledges his counsel did not object to the referenced argument 

below. Accordingly, the trial court had no opportunity to rule on the issue. Thus, the 

issue is forfeited on appeal. However, because defendant asserts his counsel was 

ineffective in failing to object, we proceed to the merits of his claim and also reject it on 

that basis.

Here, we cannot conclude the prosecutor’s referenced comments, in context, 

amounted to misconduct. It is not misconduct for a prosecutor to reiterate that the jury’s 

function is to determine whether the defendant has broken any laws. (See People v. 

Covarrubias, supra, 1 Cal.5th at p. 894.) To that end, it was not misconduct for the 

prosecutor to tell the jury to hold defendant accountable for his actions. Additionally, the 

prosecutor’s statement to the jury “to send a message” regarding what the community 

would tolerate also did not amount to misconduct. The referenced comments were made 

during the conclusion of the prosecutor’s rebuttal argument, which emphasized the jury 

should convict defendant based on the evidence presented in the case. Thus, the 

comments, in context, did not divert the jury’s attention away from the facts of the case to 

focus on an external societal issue. Rather, the comments permissibly told the jurors they 

were tasked with weighing the evidence, considering the charges, and ultimately deciding 

whether defendant had violated any laws and rendering its verdict accordingly. (See
84.

People v. Covarrubias, supra, 1 Cal.5th at pp. 893–895 [no misconduct where prosecutor 

told jury its job and “responsibility as jurors is to act as the litmus test, to apply the laws 

of our society, and to determine what our community will and will not tolerate”].)

The prosecutor here did not discuss the jury’s ability to alleviate broader societal 

problems by rendering a guilty verdict or refer to evidence outside of the record as in the 

cases defendant relies upon. In U.S. v. Weatherspoon, supra, 410 F.3d 1142, the Ninth 

Circuit Court of Appeals held the prosecutor engaged in misconduct in stating: 

“‘Convicting Mr. Weatherspoon is gonna make you comfortable knowing there’s not 

convicted felons on the street with loaded handguns, that there’s not convicted felons 

carrying around semiautomatic,’” and then repeatedly reiterating this point and stating 

“‘finding this man guilty is gonna protect other individuals in this community,’” despite 

two admonitions by the court that the prosecutor should confine his arguments to “‘guilt 

or not guilt.’” (Id. at p. 1149.) The Weatherspoon court noted, “‘A prosecutor may not 

urge jurors to convict a criminal defendant in order to protect community values, preserve 

civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is 

that the defendant will be convicted for reasons wholly irrelevant to his own guilt or 

innocence. Jurors may be persuaded by such appeals to believe that, by convicting a 

defendant, they will assist in the solution of some pressing social problem. The 

amelioration of society’s woes is far too heavy a burden for the individual criminal 

defendant to bear.’” (Ibid.) The Weatherspoon court held the prosecutor’s referenced 

argument in that case “encourage[d] the jury to enter a verdict on the basis of emotion 

rather than fact.” (Id. at p. 1150; see U.S. v. Polizzi (9th Cir. 1986) 801 F.2d 1543, 1558 

[noting it was improper for prosecutor to tell jury it had any obligation other than 

weighing evidence, but concluding defendant was not prejudiced]; People v. Gonzales

(2011) 51 Cal.4th 894, 952 [noting prosecutor’s invitations to jury to “take the role of a 

protective family for [the] victim were plainly improper” because it asked the jury “to go 
85.

far beyond their role as the arbiters of punishment prescribed by law” in reaching its 

penalty decision].)

In contrast, here, the prosecutor’s argument urged the jury to render a guilty 

verdict based on the evidence presented in the case. The prosecutor did not argue the 

jury should convict defendant to protect community values or preserve civil order or for 

reasons wholly irrelevant to defendant’s guilt. (Cf. U.S. v. Weatherspoon, supra, 410 

F.3d at p. 1149.) “‘[N]othing prevents the government from appealing to the jurors’

sense of justice, or from connecting the point to the victims in the case.’ [Citations.] 

And prosecutors can appeal to jurors’ duty to the community. [Citation.] ‘Unless 

calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as 

the community conscience are not per se impermissible.’” (U.S. v. Hall (6th Cir. 2020) 

979 F.3d 1107, 1122.)

Accordingly, we cannot conclude the prosecutor’s statements here improperly 

inflamed the jury’s passions or prejudices. (See United States v. Alloway (6th Cir. 1968) 

397 F.2d 105, 113 [no misconduct where prosecutor told jury it was “‘called upon ... to 

be the world conscience of the community,’” “‘to speak out for the community,’” and 

“‘let the John Alloways know that this type of conduct will not be tolerated’”]; see 

generally U.S. v. Solivan (6th Cir. 1991) 937 F.2d 1146, 1152 [“The correlation between 

the community interest comments and the wider social-political context to a large extent 

controls the determination of whether an appeal is deemed impermissible because it is 

calculated to inflame passion and prejudice”].) Rather, none of the challenged remarks 

“infect[ed] the trial with such unfairness” so as to make defendant’s conviction a denial 

of due process, nor did the prosecutor use “deceptive or reprehensible methods to attempt 

to persuade either the trial court or the jury.” (People v. Morales, supra, 25 Cal.4th at p. 

44.)

We reject defendant’s contention the prosecutor’s referenced argument constituted 

misconduct, and thus do not consider his ineffective assistance of counsel claim.
86.

VIII. Cumulative Effect of Alleged Errors

Defendant argues there were numerous errors in this case that cumulatively 

prejudiced him and rendered his trial “grossly unfair.” He contends this “was a one-sided 

trial by a biased jury.” We disagree.

“Under the ‘cumulative error’ doctrine, we reverse the judgment if 

there is a ‘reasonable possibility’ that the jury would have reached a result 

more favorable to defendant absent a combination of errors. (See People v. 

Williams (2009) 170 Cal.App.4th 587, 646; In re Avena (1996) 12 Cal.4th 

694, 772, fn. 32 [‘Under the “cumulative error” doctrine, errors that are 

individually harmless may nevertheless have a cumulative effect that is 

prejudicial.’].) ‘The “litmus test” for cumulative error “is whether 

defendant received due process and a fair trial.”’ (People v. Cuccia (2002) 

97 Cal.App.4th 785, 795.)” (People v. Poletti (2015) 240 Cal.App.4th 

1191, 1216–1217.) 

Here, there is no series of prejudicial errors to cumulate. Accordingly, defendant 

cannot demonstrate the cumulative effect of the alleged errors resulted in prejudice. (See 

In re Reno (2012) 55 Cal.4th 428, 483 [“As noted, claims previously rejected on their 

substantive merits—i.e., this court found no legal error—cannot logically be used to 

support a cumulative error claim because we have already found there was no error to 

cumulate”].)

IX. Constitutionality of Special Circumstance

Defendant also presents a facial challenge to the constitutionality of the drive-by 

murder special circumstance, asserting it fails to narrow the class of persons subject to 

capital punishment. He asserts his argument “is bolstered by the language used in 

Section 189, defining a first degree drive-by murder, when compared to the drive-by 

special circumstance.” He contends “once the jury finds a defendant guilty of first degree 

drive-by murder, a true finding on the drive-by special circumstance is a foregone 

conclusion.” Similarly, defendant argues “there is no distinction between the gang 

enhancement and the gang special circumstance sufficient to pass constitutional muster.” 

He contends, “If the same conduct that constitutes first degree murder with a gang 

enhancement also subjects one to capital punishment, then the special circumstance fails 
87.

to narrow the class of persons subject to capital punishment.” Based on established 

precedent, we reject defendant’s contentions; the challenged provisions of section 190.2 

do adequately narrow the class of death-eligible defendants.

“To pass constitutional muster, a capital sentencing scheme must ‘genuinely 

narrow the class of persons eligible for the death penalty and must reasonably justify the 

imposition of a more severe sentence on the defendant compared to others found guilty of 

murder.’ [Citations.] Under the capital sentencing laws of most States, the jury is 

required during the sentencing phase to find at least one aggravating circumstance before 

it may impose death.[13][Citations.] By doing so, the jury narrows the class of persons 

eligible for the death penalty according to an objective legislative definition. [Citation.]”

(Lowenfield v. Phelps (1988) 484 U.S. 231, 244; accord, Tuilaepa v. California (1994) 

512 U.S. 967, 972 [“the trier of fact must convict the defendant of murder and find one 

‘aggravating circumstance’ (or its equivalent) at either the guilt or penalty phase.... 

[T]he aggravating circumstances must meet two requirements. First, the circumstance 

may not apply to every defendant convicted of a murder; it must apply only to a subclass 

of defendants convicted of murder. [Citation.] Second, the aggravating circumstance 

may not be unconstitutionally vague”].)

“Under California’s capital sentencing scheme, the special circumstances perform 

the narrowing function required by the Eighth Amendment.” (People v. Wilkins (2021) 

68 Cal.App.5th 153, 164.) And the California Supreme Court has consistently and 

categorically rejected arguments the enumerated list of special circumstances in section 

190.2 fails to adequately narrow the class of persons eligible for the death penalty. (See,

e.g., People v. Scully (2021) 11 Cal.5th 542, 610 [“Section 190.2, which sets forth the 

special circumstances that render those convicted of murder death eligible, adequately 

13We note, here, as a juvenile offender, defendant was ineligible for the death penalty.

(See Roper v. Simmons, supra, 543 U.S. at pp. 572–573 [adopting categorical rule barring 

imposition of death penalty on juvenile offenders under the age of 18, rather than permitting 

consideration of mitigating arguments related to youth on a case-by-case basis].)
88.

narrows the class of those eligible for the death penalty and is not impermissibly broad in 

violation of the Eighth and Fourteenth Amendments”]; People v. Reed, supra, 4 Cal.5th 

at pp. 1017–1018 [reaffirming “state’s death penalty scheme does not violate the federal 

Constitution by failing to sufficiently narrow the class of offenders eligible for the death 

penalty”]; People v. Pollock (2004) 32 Cal.4th 1153, 1196 [noting “‘we have held: The 

special circumstances listed in section 190.2 adequately narrow the class of murders for 

which the death penalty may be imposed”].) It has also expressly held that “first degree 

murder liability and special circumstance findings may be based upon common elements

without offending the Eighth Amendment. [Citations.]” (People v. Catlin (2001) 26 

Cal.4th 81, 158; accord, Lowenfield v. Phelps, supra, 484 U.S. at p. 246 [“the fact that the 

aggravating circumstance duplicated one of the elements of the crime does not make this 

[death] sentence constitutionally infirm”]; see People v. Johnson (2016) 62 Cal.4th 600, 

636 [Cal. Supreme Court’s previous opinions support the conclusion that even if lying-inwait special circumstance were “identical to lying-in-wait first degree murder,” it 

nevertheless “would satisfy federal constitutional requirements for death eligibility”].) 

Thus, it is not unconstitutional for a special circumstance to duplicate elements of the 

offense of which the defendant is convicted. (See People v. Rodriguez (1998) 66 

Cal.App.4th 157, 164 [relying upon Lowenfield to conclude defendant’s contention “that 

section 190.2(a)(21) contains a constitutional infirmity simply because it duplicates the 

elements which defined defendant’s murder as ... first degree murder ... has already been 

decided to have no merit”]; People v. Wilkins, supra, 68 Cal.App.5th at p. 165 [“As our 

Supreme Court has made clear, overlapping culpability and special circumstance 

elements—even identical ones—do not offend the Eighth Amendment”].)

Accordingly, we reject defendant’s contentions that the challenged special 

circumstances are unconstitutional. Rather, because section 190.2, subdivision (a)(21) 

and (22) applies only to subclasses of murderers, not to all murderers, there is no merit to 
89.

defendant’s contention that they fail to adequately narrow the class of death-eligible 

defendants. (See People v. Beames, supra, 40 Cal.4th at p. 934.)

X. Assembly Bill 333

In supplemental briefing, defendant asserts the gang special circumstance and the 

gang enhancement (§ 186.22, subd. (b)(1)(c), (b)(5)) must be reversed based on changes 

made to section 186.22 by the enactment of Assembly Bill 333. We agree with defendant 

and conclude he is entitled to reversal of the gang enhancement and gang special 

circumstance, which the People are entitled to retry under the amended law.

A. Statutory Changes to Section 186.22 and Enactment of Section 1109

While defendant’s appeal was pending, the Legislature enacted Assembly Bill 

333, the STEP Forward Act of 2021, which, in part, amends section 186.22 to impose 

new substantive and procedural requirements for gang allegations. The legislation went 

into effect on January 1, 2022.

First, Assembly Bill 333 amended the definition of a “‘criminal street gang,’”

requiring proof that the gang is an ongoing, organized association or group of three or 

more persons, whose members collectively engage in, or have engaged in, a pattern of 

criminal activity (§ 186.22, subd. (f)). Next, the law created a stricter requirement for 

proof of “‘a pattern of criminal gang activity,’” which is necessary to prove that the group 

with which the defendant is associated is indeed a criminal street gang. (See § 186.22,

subds. (e)–(f).) Previously, the prosecution needed to prove only that those associated 

with the gang had committed at least two offenses from a list of predicate crimes on 

separate occasions within three years of one another. (See former § 186.22, subd. (e).) 

Under the newly amended law, the offense with which the defendant is currently charged 

cannot be used as one of the two predicate offenses. (§ 186.22, subd. (e)(2).) In addition, 

the last of the predicate offenses must have “occurred within three years of the prior 

offense and within three years of the date the current offense is alleged to have been 

committed.” (§ 186.22, subd. (e)(1).) The predicate offenses must have been committed 
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“on separate occasions or by two or more members,” and must have been for the 

“common[] benefit[] [of] a criminal street gang,” and “the common benefit from the 

offenses is more than reputational.” (Ibid.) Assembly Bill 333 also narrowed the list of 

offenses that may be used to establish a pattern of criminal gang activity (compare former 

§ 186.22, subd. (e)(1)–(33) with current § 186.22, subd. (e)(1)(A)–(Z)). Additionally, it 

defines “to benefit, promote, further, or assist” throughout section 186.22 to mean “to 

provide a common benefit to members of a gang where the common benefit is more than 

reputational.” (Id., subd. (g).) The legislation notes examples of a common benefit that 

are more than reputational “may include, but are not limited to, financial gain or 

motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or 

silencing of a potential current or previous witness or informant.” (Ibid.)

Finally, Assembly Bill 333 adds section 1109, which requires bifurcation of gang 

enhancements charged under section 186.22, subdivision (b) or (d) to be tried separately 

from the underlying charges upon request from the defense. (Stats. 2021, ch. 699, § 5.) 

Section 1109 also requires that the substantive offense of active participation in a 

criminal street gang (§ 186.22, subd. (a)) be tried separately from all other counts that do 

not require gang evidence as an element of the crime (§ 1109, subd. (b)).

B. Defendant Is Entitled to Reversal of His Gang Enhancement

In People v. Tran, supra, 13 Cal.5th 1169, the California Supreme Court held 

Assembly Bill 333’s amendments to section 186.22 altering the substantive requirements 

necessary to prove the substantive gang offense and gang enhancements operate 

retroactively under the rule of In re Estrada (1965) 63 Cal.2d 740. (Tran, supra, at p. 

1207.) The Tran court explained, “Estrada ‘stand[s] for the proposition that (i) in the 

absence of a contrary indication of legislative intent, (ii) legislation that ameliorates 

punishment (iii) applies to all cases that are not yet final as of the legislation’s effective 

date.’ [Citation.] Estrada applies to statutory amendments ‘which redefine, to the 

benefit of defendants, conduct subject to criminal sanctions.’ [Citation.] Here, 
91.

‘Assembly Bill 333 essentially adds new elements to the substantive offense and 

enhancements in section 186.22—for example, by requiring proof that gang members 

‘collectively engage’ in a pattern of criminal gang activity, that the predicate offenses 

were committed by gang members, that the predicate offenses benefitted the gang, and 

that the predicate and underlying offenses provided more than a reputational benefit to 

the gang....’ [Citations.] These changes have the effect of ‘increas[ing] the threshold for 

conviction of the section 186.22 offense and the imposition of the enhancement,’ with 

obvious benefit to defendants like Tran. [Citation.]’” (People v. Tran, supra, at pp. 

1206–1207.) Accordingly, it is undisputed defendant may seek the benefit of Assembly 

Bill 333’s amendments to section 186.22.

Due to the changes to section 186.22, defendant asserts he is entitled to reversal of 

his gang enhancement (§ 186.22, subd. (b)). He asserts the evidence was insufficient to 

prove the predicate offenses under Assembly Bill 333’s new requirements. Specifically, 

defendant argues, “[w]hile there was evidence of predicate offenses offered at trial, the 

evidence did not establish that they ‘commonly benefited a criminal street gang, and the 

common benefit of the offense [was] more than reputational.’” He also contends the 

People did not prove the benefit to the gang from the commission of the current offense 

was more than reputational. He contends Investigator Segura testified to many ways in 

which the crime could benefit a gang, but he testified more than once the benefit to the 

gang was reputational. Accordingly, citing People v. Sek (2022) 74 Cal.App.5th 657, 

668, in support, he contends we cannot be sure the jury did not rely on reputational 

benefit to the gang as its basis for finding the enhancement true. Defendant also asserts 

the predicate offense committed by Alfredo Ayala alone does not qualify as a predicate 

offense or evidence of a pattern of criminal gang activity under the current statute. The 

People disagree with defendant’s contentions, asserting there “is overwhelming evidence 

showing that the predicate and current offenses were committed for the ‘common benefit’

such that the jury would have still found true the enhancement(s).” They assert the 
92.

offense involving Cesar Tadeo and Juan Flores related to an assault on a rival gang 

member and the current offense involved defendant targeting a rival gang member in 

retaliation. Accordingly, they assert the “common benefit to the gang of these crimes is 

self-evident from the facts of the crimes themselves” and “[n]o expert testimony was 

necessary to explain that attacking a rival gang member, especially in retaliation, would 

commonly benefit members of a gang,” so a jury “undoubtedly would have found this 

element satisfied under [Assembly Bill] 333.” The People assert the word “collectively”

in the statute means the predicate offenses can be established in two ways: “‘(1) [by 

proof that] two different gang members separately committed crimes on two occasions; 

or (2) [by proof that] two different gang members committed a crime together on a single 

occasion,’” quoting People v. Clark (2022) 81 Cal.App.5th 133, 145, review granted 

October 19, 2022, S275746. To that end, they disagree with the contention that 

“collectively” means committed by “more than one person.” Accordingly, they contend 

the predicate offense involving Ayala qualifies as a predicate offense under the amended 

law.

We agree with defendant’s contention that he is entitled to reversal of his section 

186.22, subdivision (b) gang enhancement based on the changes to section 186.22. In so 

concluding, we first note, in his supplemental opening brief and reply, defendant asserts 

there was evidence the predicate offense committed by Flores and Tadeo involved Tadeo 

and Flores assaulting a rival gang member.14 However, the record does not support this 

conclusion. While defendant cites Officer Avila’s testimony and the juvenile wardship 

petitions and related dispositions in support of this contention, the trial court sustained 

objections to the referenced portions of Officer Avila’s testimony in which he testified 

Tadeo and Flores “assaulted a rival gang member.” Also, neither the wardship petitions 

14In their response brief, the People rely on the statements in defendant’s brief and the 

same portions of the record to assert defendant concedes the evidence supports a conclusion the 

predicate offense related to Tadeo and Flores involved “assaulting a rival gang member.” They 

cite to no other evidence or portion of the record as evidence of this “fact.”
93.

nor dispositions establish this fact. And there is no other evidence in the record to 

support this fact. Rather, the record is devoid of evidence the offense involving Tadeo 

and Flores involved them attacking or assaulting a rival gang member. And, while 

Officer Segura testified generally about the ways crimes can benefit a gang, there was no 

expert testimony regarding how the specific predicate offenses at issue benefitted the 

gang in a way that was more than reputational. There was also no evidence regarding the 

facts underlying Ayala’s attempted murder conviction or expert testimony about that 

crime such that the jury could conclude that offense provided a common benefit to the 

Tiny Locos Sureños that was more than reputational. Thus, our review of the record does 

not establish a basis from which to conclude the offense involving Tadeo and Flores 

and/or the predicate offense involving Ayala benefitted the gang in a way that was more 

than reputational.

Accordingly, the evidence presented at trial was insufficient to establish “a pattern 

of criminal gang activity” and, thus, a “criminal street gang” as necessary to sustain 

defendant’s gang enhancement pursuant to amended section 186.22. (See § 186.22, 

subds. (e), (f).) As a result, we need not reach defendant’s further contentions that there 

was insufficient evidence that all the predicate offenses were committed “collectively” as 

required under the amended law15 or that the current offense commonly benefited the 

15We note there is a dispute among the courts of appeal on whether an offense committed 

by a lone actor can be used as a predicate offense to establish a pattern of criminal gang activity, 

and the issue is currently pending in the California Supreme Court in People v. Clark, supra, 81 

Cal.App.5th 133, review granted. (Cf. People v. Delgado (2022) 74 Cal.App.5th 1067, 1088–

1089 [“we read the term ‘collectively’ in a commonsense manner to mean what it says—

committed by more than one person, and not, as argued by the People, individually but on a 

different day”]; People v. Lopez (2021) 73 Cal.App.5th 327, 344–345 [noting Assembly Bill 333 

requires “prosecution to prove collective, not merely individual, engagement in a pattern of 

criminal gang activity” and reversing gang-related enhancements and special circumstance 

because no evidence was introduced at trial to establish crimes committed by individual gang 

members constituted collective criminal activity by the gang]; People v. Clark, supra, at p. 144 

[because amended § 186.22 provides “multiple members of the gang must be involved in the 

pattern of criminal gang activity, the plain meaning of the phrase ‘the offenses were committed 

on separate occasions or by two or more members’ means there are two options for establishing 

the requisite pattern: (1) prove two different gang members separately committed crimes on two 
94.

Tiny Locos Sureños and the common benefit was more than reputational.16 (See 

§ 186.22, subd. (e)(1); see also People v. Lopez, supra, 73 Cal.App.5th at p. 346 

[“Although the People did submit evidence of two predicate offenses that were 

committed in the new time frame, the People did not prove that the predicate offenses 

commonly benefitted a criminal street gang and that the benefit was more than 

reputational”].)

The People are not foreclosed from retrying defendant on the gang enhancement

(§ 186.22, subd. (b)) upon remand under the new requirements of amended section

186.22. Put differently, “‘[b]ecause we do not reverse based on the insufficiency of the 

evidence required to prove a violation of the statute as it read at the time of trial, the 

double jeopardy clause of the Constitution will not bar a retrial.’” (People v. Sek, supra,

74 Cal.App.5th at p. 669; accord, People v. Figueroa (1993) 20 Cal.App.4th 65, 72

[“Where, as here, evidence is not introduced at trial because the law at that time would 

have rendered it irrelevant, the remand to prove that element is proper and the reviewing 

court does not treat the issue as one of sufficiency of the evidence”]; see People v. Eagle

(2016) 246 Cal.App.4th 275, 280 [“When a statutory amendment adds an additional 

occasions; or (2) prove two different gang members committed a crime together on a single 

occasion”].) Notably, in People v. Tran, supra, 13 Cal.5th 1169, the prosecution introduced 

felony complaints, guilty pleas, minute orders, and other court documents that showed three 

individuals had pleaded guilty to various crimes and that they were members of a criminal street 

gang or had committed the crimes for its benefit. (Id. at p. 1205.) On appeal, the People 

conceded the evidence failed to establish the gang members “collectively” engaged in a pattern 

of criminal gang activity, as required under the amended statute. (Id. at p. 1207.) The Tran

court agreed, concluding “we need not resolve the contours of Assembly Bill 333’s collective 

engagement requirement” because “the jury was not presented with any discernible theory as to 

how [gang] members ‘collectively engage[d] in’” the requisite predicate crimes (§ 186.22, subd.

(f)). (People v. Tran, supra, at p. 1207.) However, as discussed, we need not discuss this issue 

further because we are remanding on other grounds.

16Based on our conclusion, we also need not address the parties’ discussion of whether 

evidence of the assault offense involving Tadeo and Flores amounted to a single offense or two 

predicate offenses.
95.

element to an offense, the prosecution must be afforded the opportunity to establish the 

additional element upon remand”].)

C. Assembly Bill 333 Requires Reversal of the Gang Special Circumstance

Defendant argues the gang special circumstance must also be reversed because of

the changes enacted by Assembly Bill 333. The People disagree, asserting “[Assembly 

Bill] 333’s amendment to section 186.22, subdivisions (e) and (f), appears to be an 

unconstitutional amendment to the gang-murder special circumstance created by the 

voters via Proposition 21.” We agree with defendant the Assembly Bill 333’s 

amendments apply to the section 190.2, subdivision (a)(22) finding and reverse the gang 

special circumstance on that basis.

Section 190.2, subdivision (a)(22) was enacted as part of Proposition 21, an 

initiative measure adopted by the electorate in the March 2000 primary election. (People 

v. Shabazz (2006) 38 Cal.4th 55, 64–65.) Section 190.2, subdivision (a)(22) makes first 

degree murder a capital crime if “[t]he defendant intentionally killed the victim while the 

defendant was an active participant in a criminal street gang, as defined in subdivision (f) 

of Section 186.22, and the murder was carried out to further the activities of the criminal 

street gang.” (Italics added.)

There is a split of authority on whether applying the changes effectuated by 

Assembly Bill 333 to the gang special circumstance amounts to an unconstitutional 

amendment to Proposition 21. In People v. Lopez, supra, 73 Cal.App.5th 327, the 

Second Appellate District, Division Eight, concluded “Assembly Bill 333’s changes to 

section 186.22 affect not only the gang enhancement allegations under that statute but 

other statutes that expressly incorporate provisions of section 186.22,” including section 

190.2, subdivision (a)(22). (Lopez, at p. 346.) The Lopez court held, because “the 

definition of a criminal street gang has been narrowed by Assembly Bill 333 and new 

elements added in order to prove a criminal street gang and a pattern of criminal 
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activity,” the requirements for proving a gang special circumstance under section 190.2, 

subdivision (a)(22) have likewise changed. (73 Cal.App.5th at p. 347.)

In People v. Rojas (2022) 80 Cal.App.5th 542, review granted October 19, 2022, 

S275835, a divided panel of our district reached the opposite conclusion. (Id. at pp. 557–

558.) The Rojas majority held that “[b]ecause Assembly Bill 333 ‘takes away’ from the 

scope of conduct that Proposition 21 made punishable under section 190.2” (id. at p. 

555), “it is unconstitutional to the extent it would amend that initiative” (id. at p. 557). 

The Rojas majority relied on the fact that California voters restricted the Legislature’s 

ability to amend the provisions of Proposition 21. (Rojas, at p. 555.) The majority 

reasoned: “While the Legislature was free to amend Proposition 21 ..., it could only do 

so with a two-thirds vote in each house. (Voter Information Guide, Primary Elec.

(Mar. 7, 2000) text of Prop. 21, ... § 39, p. 131.) Assembly Bill 333 did not comply with 

that requirement and therefore cannot amend Proposition 21.” (Rojas, at p. 555.) As a 

result, Rojas implies that a special circumstance murder allegation under section 190.2, 

subdivision (a)(22) may be proven based on a different, less restrictive definition of a 

“criminal street gang” than is found in the current version of section 186.22. (See Rojas, 

at p. 558 [holding “Assembly Bill 333 does not alter the scope or effect of section 190.2, 

subdivision (a)(22)”].)

In People v. Lee (2022) 81 Cal.App.5th 232, review granted October 19, 2022, 

S275449, Division Four of the Second Appellate District concluded Assembly Bill 333 

does not unconstitutionally amend section 190.2, subdivision (a)(22). Focusing on the 

question of voter intent, the Lee court opined there is “nothing to suggest that the 

electorate intended to impose a time-specific incorporation of the term ‘criminal street 

gang’ in the gang-murder special-circumstance statute.” (Lee, at p. 245.) Accordingly, 

Lee holds “that the term ‘criminal street gang’ as incorporated in the gang-murder 

special-circumstance statute was ‘intended to conform at all times’ and ‘remain 

permanently parallel’ to section 186.22.” (Ibid., quoting In re Jovan B. (1993) 6 Cal.4th 
97.

801, 816 & fn. 10.) The Lee court further reasoned, the voters reenacted section 186.22, 

subdivision (f) without substantive change; so “subdivision (f) of section 186.22 cannot 

be deemed ‘among the initiative’s statutory provisions’ made immune from legislative 

amendment by force of article II, section 10 of the state Constitution.” (Lee, at p. 242.) 

“In short, the voters left intact the Legislature’s power to amend the definition of a 

criminal street gang in section 186.22, subdivision (f).” (Ibid.) And the Lee court 

concluded there was no basis to conclude the voters did not intend to permit any future 

amendment to 186.22, subdivision (f) to be incorporated into the gang-murder special 

circumstance. (Lee, at p. 242.) Rather, “[i]n enacting Proposition 21, the electorate 

clearly knew how to express the intent to freeze a statutory definition,” given the express 

time-specific incorporations in other sections; but, it did not include a time-specific 

incorporation of section 186.22, subdivision (f) in section 11 of Proposition 21, the 

provision supplying the gang-murder special circumstances. (Lee, at pp. 242–243.) 

Accordingly, “[t]here is simply no basis to believe that the voters understood they were 

precluding future amendments of subdivision (f) of section 186.22 as referred to in the 

gang-murder special circumstance, while permitting such future amendments for section 

186.22 itself.” (Id. at p. 243.)

Relatedly, in People v. Lopez (2022) 82 Cal.App.5th 1, another panel of our court 

held Assembly Bill 333 did not unconstitutionally amend the crime of gang conspiracy 

proscribed by section 182.5, which was enacted as part of Proposition 21.17 (Id. at p. 21.) 

Like Lee, the Lopez court reasoned, in part, that there was no time-specific provision in 

Proposition 21 for section 182.5 as there was for other provisions of the criminal law.

(Lopez, at pp. 23–24.) Accordingly, the Lopez court concluded, “[W]e agree with Lee’s 

conclusion that ‘the electorate clearly knew how to express the intent to freeze a statutory 

17

“[C]ertain elements of the gang conspiracy offense proscribed by section 182.5 are 

defined by incorporation of provisions that were amended by Assembly Bill 333, namely, section 

186.22, subdivisions (e) and (f).” (People v. Lopez, supra, 82 Cal.App.5th at p. 18.)
98.

definition,’” and “[t]he absence of such time-specific language in section 182.5 leads to 

our rejection of the People’s claim.” (Id. at pp. 24–25.)

Defendant urges us to follow the reasoning in Lee, while the People urge us to 

adopt the Rojas court’s view. Because review has been granted in both Rojas and Lee, 

this issue has not been decided. We, however, agree with and endorse the reasoning of

Lee. Applying that reasoning here, we conclude the section 190.2, subdivision (a)(22), 

special circumstance must also be reversed.

XI. Firearm Enhancement and Fines and Fees

Defendant contends his case should be remanded for resentencing so the trial court 

can exercise its discretion to impose a lesser firearm enhancement and so the court can 

consider his ability to pay before imposing the restitution fine and various fees.

18, 19

With regard to the firearm enhancement, defendant asserts the jury found true three 

firearm enhancements pursuant to section 12022.53, subdivisions (b), (c), and (d) and, 

though the court declined to strike the enhancements based on its newfound discretion 

under Senate Bill No. 620 (2017–2018 Reg. Sess.), the court did not appear to be aware it 

had discretion to impose a different, lesser firearm enhancement. The People disagree 

with defendant’s contentions.20

18Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, he asserts the “record is 

devoid of evidence of [his] ability to pay” the $5,000 restitution fine, a $40 court operations fee, 

and a $30 court security fee. He asserts “he is entitled to relief, and, because this case should be 

remanded for resentencing on another issue, the trial court can readily conduct an ability-to-pay 

hearing.”

19He also contends his counsel was prejudicially ineffective in failing to raise these 

issues at sentencing.

20The People assert the court knew it had discretion to impose a lesser enhancement; it 

simply chose not to. They argue, had the court “stricken the subdivision (d) enhancement, it 

would have had to decide what to do with the subdivision (c) enhancement; had it also stricken 

the subdivision (c) enhancement it would have had to decide what to do with the subdivision (b) 

enhancement.” They further contend defendant’s challenge to the restitution fine and certain 

fees is forfeited because he failed to raise it below. They further note, because the restitution 

fine was set above the statutory minimum, the statute expressly allows for consideration of 

ability to pay that fine. Accordingly, defendant was “obligated to challenge the fine on inability 

to pay grounds, and nothing in the statute or case law made such an objection futile.” They 
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Because we are reversing defendant’s gang enhancement and gang-murder special 

circumstance, a new sentencing or disposition hearing will necessarily result. 

Accordingly, defendant may raise his remaining claims at resentencing and we need not 

discuss them further.

XII. Senate Bill 81

In supplemental briefing, defendant next asserts that at resentencing, he is entitled 

to seek the benefit of Senate Bill 81, which amended section 1385 “to specify factors that 

the trial court must consider when deciding whether to strike enhancements from a 

defendant’s sentence in the interest of justice.” (People v. Sek, supra, 74 Cal.App.5th at 

p. 674; see Stats. 2021, ch. 721, § 1.) The People agree that, if remand is required for 

another reason, the amendments to section 1385 should apply at a future resentencing 

hearing. We, too, agree that Senate Bill 81’s amendments to section 1385 should apply at 

resentencing.

As modified by Senate Bill 81, section 1385, subdivision (c) now provides, in part:

“(1) Notwithstanding any other law, the court shall dismiss an 

enhancement if it is in the furtherance of justice to do so, except if 

dismissal of that enhancement is prohibited by any initiative statute.

“(2) In exercising its discretion under this subdivision, the court shall 

consider and afford great weight to evidence offered by the defendant to 

prove that any of the mitigating circumstances ... are present. Proof of the 

presence of one or more of these circumstances weighs greatly in favor of 

dismissing the enhancement, unless the court finds that dismissal of the 

enhancement would endanger public safety. ‘Endanger public safety’

means there is a likelihood that the dismissal of the enhancement would 

result in physical injury or other serious danger to others.”

The mitigating circumstances courts are to consider and afford great weight to in 

considering whether to strike an enhancement include, but are not limited to, whether 

“multiple enhancements are alleged in a single case” and “[t]he defendant was a juvenile 

contend, even if the issue was not forfeited, defendant is not entitled to an ability to pay hearing 

because the restitution fine does not violate either the Eighth Amendment or due process and 

defendant should be able to pay the imposed fees from his prison wages.
100.

when they committed the current offense or any prior offenses, including criminal 

convictions and juvenile adjudications, that trigger the enhancement or enhancements 

applied in the current case.” (§ 1385.)21 Defendant contends multiple mitigating 

circumstances apply to his case.

As the parties acknowledge, section 1385, subdivision (c), as amended by Senate 

Bill 81, provides that it shall apply to sentencings occurring after January 1, 2022, the 

effective date of Senate Bill 81.22 And the People concede, because defendant will be 

resentenced after the effective date of the legislation, Senate Bill 81’s amendments to 

section 1385 should apply at the resentencing hearing. We accept the People’s 

concession and conclude defendant may seek the benefit of Senate Bill 81 at 

resentencing.

XIII. Assembly Bill 2361 Requires a Conditional Reversal and Remand

Welfare and Institutions Code section 707 governs the procedures for transferring 

a minor from juvenile court to a court of criminal jurisdiction. Effective January 1, 2023, 

Assembly Bill 2361 amends section 707 of the Welfare and Institutions Code, in part, by

increasing the prosecution’s burden to prove that such a transfer is appropriate. Pursuant 

to the new legislation, Welfare and Institutions Code section 707, subdivision (a)(3) now

requires the juvenile court to find by “clear and convincing evidence that the minor is not 

amenable to rehabilitation while under the jurisdiction of the juvenile court” before 

transferring a minor to the jurisdiction of the superior court, and it requires the court to 

21Senate Bill 81 initially codified these provisions under section 1385, subdivision

(c)(3)(B) and (c)(3)(G), respectively, but section 1385 was further amended pursuant to 

Assembly Bill No. 200 (2021–2022 Reg. Sess.) (Assembly Bill 200), effective June 30, 2022, 

and these provisionswere amended to fall under subdivision (c)(2)(B) and (c)(2)(G), 

respectively. (Stats. 2022, ch. 58, § 15.)

22Pursuant to Senate Bill 81, section 1385, subdivision (c)(7) provided: “This 

subdivision shall apply to sentencings occurring after the effective date of the act that added this 

subdivision.” (Stats. 2021, ch. 721, § 1.) Thereafter, Assembly Bill 200 modified subdivision

(c)(7) of section 1385 to state, “This subdivision shall apply to all sentencing occurring after 

January 1, 2022.” (Stats. 2022, ch. 58, § 15.) Because Senate Bill 81 became effective 

January 1, 2022, this modification did not result in a substantive change.
101.

“include the reasons supporting the court’s finding that the minor is not amenable to 

rehabilitation while under the jurisdiction of the juvenile court” in an order entered upon 

the minutes. (Stats. 2022, ch. 330, § 1, subd. (a)(3).)

Here, defendant’s case was initially filed directly in adult criminal court in August 

2016. After Proposition 57 was passed in November 2016, the court granted defendant’s 

motion to transfer his case to juvenile court where a contested transfer hearing was held.

Defendant was then transferred to adult court in August 2017 where he was tried and 

convicted.

In supplemental briefing, defendant asserts conditional reversal of the judgment 

and a remand to the juvenile court is required for a Welfare and Institutions Code section 

707 transfer hearing under the new standard in light of Assembly Bill 2361. The People 

agree with defendant that Assembly Bill 2361 operates retroactively and a conditional 

reversal and remand is necessary for the juvenile court to hold a transfer hearing at which 

it applies the new standard. (In re Estrada, supra, 63 Cal.2d at p. 745.)

Like Proposition 57, Assembly Bill 2361 raises the burden of proof for 

transferring a juvenile to adult criminal court, among other changes. Thus, Assembly Bill 

2361, like Proposition 57, “reduces the possible punishment for a class of persons, 

namely juveniles.” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 303.) 

Accordingly, we agree with the parties and conclude a conditional reversal of the 

judgment and remand to the juvenile court is required. The juvenile court is to conduct a 

transfer hearing pursuant to Welfare and Institutions Code section 707, as amended by 

Assembly Bill 2361.

DISPOSITION

The gang enhancement and gang-murder special circumstance are reversed. We 

also conditionally reverse the remainder of the judgment and remand the matter to the 

juvenile court with directions to conduct a new transfer hearing at which Welfare and 

Institutions Code section 707, as amended by Assembly Bill 2361, will apply.
102.

If, after conducting the juvenile transfer hearing, the court determines that it would 

have transferred the defendant to a court of criminal (adult) jurisdiction then the 

judgment shall be reinstated as of that date. (Welf. & Inst. Code, § 707.1, subd. (a).) The 

People must elect whether to retry defendant on the gang enhancement and gang-murder 

special circumstance. If the People elect not to retry defendant on the gang enhancement 

and gang-murder special circumstance, the trial court shall modify the judgment by 

striking defendant’s gang enhancement and the gang-murder special circumstance and 

shall hold a resentencing hearing.

On the other hand, if the juvenile court finds that it would not have transferred 

defendant to a court of criminal (adult) jurisdiction, then it shall treat defendant’s 

conviction and enhancements as juvenile adjudications. The People must elect whether 

to retry defendant on the gang enhancement and the gang-murder special circumstance. 

If the People elect not to retry defendant on the gang enhancement and the gang-murder 

special circumstance, the juvenile court shall strike the defendant’s gang enhancement 

and the gang-murder special circumstance and shall conduct a disposition hearing.

PEÑA, J.

WE CONCUR:

FRANSON, Acting P. J.

SMITH, J.